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HR Talk!

Is An Employer Violating FMLA By Telling An Employee They Shouldn't Take FMLA?

Well, yes, they could be violating the employee rights to take FMLA. If an employer tells an eligible employee, who has already taken FMLA, that they have taken enough leave and threatens their job if they do take it, then guess what, the employer has now interfered with that leave. Note: an employee does not necessarily have to say the words FMLA or Family Medical Leave Act if they make their employer aware that they may have a serious health condition or need to provide care for a loved one’s serious health condition. But, if an employee does not request FMLA, then there is no violation. And according to the 7th Circuit Court of Appeals, there are four reasons why an employer could be interfering:

  1. When employers refuse to grant or accept proper FMLA request, they are denying access to the employees leave within the meaning of "FMLA."

  2. FMLA protects "the attempts to exercise" FMLA rights.

  3. The FMLA guarantees family and medical leave to eligible employees and their families.

  4. Department of Labor prohibits employers from discouraging employees from using leave.

So, in short, employers should make sure that their employees (including managers) are educated about their rights to the Family Medical Leave Act and that they understand how to request leave in the event they need to. Oh, and denying the benefit is not required to show a violation; however, interference and restraint alone does establish a violation. If you have time to read through 25-pages of a court appeal regarding a case about this, click on the link below.


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