What FMLA interference can look like

June 23, 2025

The federal Family and Medical Leave Act (FMLA) prohibits employers from interfering with employees’ rights under the law. This includes getting in the way of legal proceedings or when employees ask about their FMLA rights. More specifically, the FMLA says that:

Employers may not interfere with, restrain, or deny employees the exercise of (or attempts to exercise) any FMLA rights.
Employers may not fire or in any other way discriminate against anyone (whether or not an employee) for opposing or complaining about any unlawful FMLA practice.
No one (whether or not an employer) may fire or in any other way discriminate against anyone (whether or not an employee) because that person has:
- Filed any charge, or has started any proceeding under or related to the FMLA;
- Given, or is about to give, any information in connection with an inquiry or proceeding relating to an FMLA right;
- Testified, or is about to testify, in any inquiry or proceeding relating to an FMLA right.

Any FMLA violation constitutes interfering with, restraining, or denying the exercise of FMLA rights.

Examples

Interfering would include, for example, not only refusing to approve FMLA leave, but also discouraging employees from taking leave. It would also include manipulation to avoid responsibilities under FMLA, for example:

Transferring employees from one worksite to another to reduce worksites, or to keep worksites below the 50/75-employee eligibility threshold;
Changing a job’s essential functions to preclude the taking of leave;
Reducing the hours available to work to avoid the 1,250 hours worked employee eligibility.

No discrimination or retaliation

Employers may not discriminate or retaliate against employees or prospective employees for having exercised or attempted to exercise FMLA rights. If, for example, employees on unpaid, non-FMLA leave would otherwise be entitled to full benefits (other than health benefits), employers need to give the same benefits to employees on unpaid FMLA leave.

By the same token, employers may not use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions. Employers also may not count FMLA leave under no-fault attendance policies.

Everyone, not just employees, is protected from retaliation for opposing (e.g., filing a complaint about) any unlawful practice. Everyone is also protected if they oppose any action they reasonably believe is an FMLA violation.

Key to remember: Employers may not interfere with employees’ FMLA rights, and interference can take many forms, including any violation of the law.

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Publish Date

June 23, 2025

Author

Darlene Clabault

Type

Industry News

Industries

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