Employers have the duty not to "interfere with" the exercise of any right under the Family and Medical Leave Act. 29 U.S.C. § 2615(a)(1). This duty is completely separate and apart from the duty to provide 12 weeks of leave to eligible employees, to reinstate employees at the end of their FMLA leaves, and not to discriminate or retaliate against employees who exercise their FMLA rights or oppose any practice that violates the FMLA. A recent case illustrates these separate prohibitions, as an employer that lawfully:

  • advised an employee of her FMLA rights,
  • provided an FMLA leave,
  • reinstated the employee at the end of her leave, and
  • fired the employee for attempted theft,

was found to have possibly "chilled" the employee's exercise of FMLA rights, because the hospital arguably discouraged her from taking the leave. Terwilliger v. Howard Mem. Hosp., No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011).

In Terwilliger, a hospital housekeeper took an 11-week FMLA leave of absence for back surgery. According to her doctor, she had no medical restrictions when she returned to her job. One month later, after a series of thefts occurred in the hospital when the plaintiff was on duty, a surveillance camera caught her opening a coworker's drawer in an office she had not been assigned to clean. She was fired for attempted theft.

The Court rejected the housekeeper's claim of discriminatory and retaliatory discharge under the FMLA, ruling that - as a matter of law - the hospital lawfully believed she was attempting theft. Although the plaintiff denied any actual theft or attempted theft, there was no evidence disproving the employer's lawful, non-discriminatory, and non-retaliatory belief.

The housekeeper did not contend that she did not receive a lawful FMLA leave of absence; nor did she contend that she was denied reinstatement in employment as required by the FMLA. However, she asserted - and the Court ruled she could continue with the claim - that she felt pressured not to take the leave and to discontinue it early. The Court held that a jury could find that the hospital had discouraged or "chilled" her exercise of FMLA rights.

Specifically, the "chilling" claim was based on assorted actions by the hospital:

  • When answering her questions about the FMLA, the HR Director allegedly instructed her not to tell anyone that she had been informed of her rights by the HR Director (an odd statement, admittedly, but not discouraging the plaintiff's leave of absence);
  • She allegedly received weekly calls from her supervisor asking when she would return to work. The Court's decision did not elaborate on these calls. (An employer lawfully may ask about an employee's recuperation, and may also consistently require people on leaves of absence to give periodic notice of their intentions on returning to work); and
  • When she asked her supervisor if her job was in jeopardy, she was allegedly told she should return to work as soon as she could. Again, the Court's decision did not elaborate on this alleged comment. (An employer may lawfully expect a person on a leave of absence for a serious health condition to return to work when able to do so).

"Interference" claims are not the most significant FMLA liability risk for employers. But employers that go to great lengths to comply with the FMLA should be careful not to say or do anything that could be construed as "chilling" or discouraging any employee from exercising FMLA rights.