When it comes to Family and Medical Leave Act (FMLA) leave, not all comments are treated equally. Some comments may discourage an employee from using FMLA leave, thereby interfering with the employee’s FMLA rights and creating employer liability. In contrast, other comments from supervisors may be viewed as completely permissible requests and do not violate the FMLA. Distinguishing between what kinds of comments are acceptable requires that you appreciate the FMLA’s statutory and regulatory requirements regarding employee leave rights.

Consider this first hypothetical: An employee requests intermittent FMLA leave to care for her husband who has a serious health condition. Although the FMLA leave is approved, when the employee tries to exercise FMLA leave, her supervisor comments that she should not really take time off because the business is “short staffed” and states that is “inconsiderate” for the employee to take leave when other employees would have to cover her shift.

Now consider this slightly different hypothetical: An employee requests FMLA for a scheduled surgery. Although the leave is approved, her supervisor comments that it would be better if the employee scheduled the surgery in a few months, if possible, after the employer’s busy season comes to an end.

In the first scenario, there is a good chance that the supervisor’s comments will create liability for the employer, or at least preclude the employer from obtaining a dismissal of an FMLA interference claim. The FMLA prohibits employers from interfering with, restraining, or denying an employee from using or trying to use FMLA leave rights. The term “interfering with” includes not only refusing to authorize FMLA leave, but discouraging an employee from using such leave. An employee may have an actionable FMLA interference claim where a supervisor or manager takes any action that could “chill” an employee’s desire to take FMLA leave, even when the employer ultimately permits the leave. In a recent case, Kimes v. University of Scranton, the U.S. District Court for the Middle District of Pennsylvania held that a supervisor’s comment that it would be “inconsiderate” for the plaintiff to take intermittent FMLA because the employer was short-staffed created an actionable claim for FMLA interference. The court reasoned that an equitable jury could conclude that such a comment could discourage the employee from using FMLA leave in the future.

The comment in the second hypothetical above is slightly different than the comment held to be actionable in the recent case in Pennsylvania. When an employee requests foreseeable or planned FMLA, such as for a surgery, the FMLA imposes an obligation on the employee to make reasonable efforts to schedule that medical treatment whenever possible to avoid undue disruption of an employer’s business. The statutory language of the FMLA actually requires the employee not to inconvenience the employer by scheduling a foreseeable treatment in an avoidably disruptive way. Applying this section of the statute and regulation, courts have held that it is perfectly acceptable for a supervisor or manager to request that an employee schedule a surgery a few weeks later, if possible, when there might be less disruption in the employer’s business. Of course, an employer may not simply deny FMLA leave altogether, but can comment about the timing of the leave without “chilling” or interfering with FMLA rights.

It is evident that context matters when it comes to a supervisor’s comments to an employee about exercising FMLA. Managers should be reminded not to make any comments to an employee about the use of intermittent FMLA that could discourage the employee from exercising future FMLA. Only in cases of scheduled or planned FMLA can the manager engage in a productive conversation to determine the best timing of the employee’s FMLA, making it clear that the goal of the conversation is to minimize the potential disruption that the leave will cause and not to discourage the employee from taking leave.