The Family and Medical Leave Act (FMLA) prohibits employers from interfering with, restraining, or denying an employee’s exercise of, or attempted exercise of, any right contained in the FMLA.  29 U.S.C. § 2615(a)(1).  Interference with FMLA rights includes employer actions that deter or discourage an employee from using FMLA leave as well as manipulation by an employer to avoid its responsibilities under the FMLA.  To prove an interference claim, an employee must show that the employer denied benefits to which he or she was entitled under the FMLA.
In Terwilliger v. Howard Memorial Hospital, the court initially held that an employee presented sufficient evidence to survive summary judgment on an interference claim.  770 F.Supp.2d 980 (W.D. Ark. 2011).  The plaintiff testified that, while she was on FMLA leave, her supervisor contacted her weekly to inquire when she would return to work, and that she felt pressured to return to work because of these calls.  On one occasion, the plaintiff asked if her job was in jeopardy, and her supervisor replied that she should return to work as soon as possible.
On the employer’s renewed motion for summary judgment, the Terwilliger court reversed its previous decision and dismissed the plaintiff’s FMLA interference claim.  The court reasoned that the employee was not entitled to additional FMLA leave because her doctor cleared her to return to work.  The court held that “if Plaintiff was not entitled to additional leave under the FMLA, it is impossible to discourage her from taking that leave.”  See Case No. 09-CV-4055 (Nov. 18, 2011 Order).
Takeaway for Employers:  The reconsidered decision in the Terwilliger case is good for employers because it stands for the principle that an employee must be entitled to FMLA leave in order to assert an interference claim.  On the other hand, the supervisor in the Terwilliger case created unnecessary risk by making weekly phone calls to the plaintiff and urging her to return to work as soon as possible.  Employers can reduce this type of risk by training supervisors on appropriate FMLA procedures.