September 20, 2021

FMLA Interference & Retaliation: Timing, Intent & Snarky Comments

Has a manager who grants an employee FMLA leave but makes the employee’s work life kind of miserable thereafter really granted FMLA leave?  Yes, and no. That’s what a U.S. District Court in Ohio recently decided.

The Family and Medical Leave Act (FMLA) has two key prohibitions. A covered employer may not interfere with an employee’s FMLA rights or retaliate against an employee for exercising or trying to exercise those rights.

So, which does a manager do, if either, when the manager and a supervisor stare at the employee, one of them cuts off communication with the employee, and they follow the employee around after the employee takes FMLA leave to care for the employee’s daughter?  Not convinced yet?  How about if the manager and/or supervisor:

  • issued a late slip to the employee but not a coworker who was late;
  • said the employee was taking too much time off work, exaggerating the daughter’s condition, and speculated amongst themselves that the employee should put the daughter in a home;
  • touched the employee’s shoulders while backing the employee up into a corner; and
  • held a fist up to the employee saying, “Hit your face against this.”


The court found there was no FMLA interference. The employee was granted the FMLA leave to which she was entitled and suffered no materially adverse action, which is, “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

But the court found the employee may have been retaliated against and provides some reminders.

  1. “An employer’s intent is critical to the analysis of retaliation claim…because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights.”
  2. A reasonable jury could find that the employer’s actions were motivated by the employee’s protected activity because of the supervisors’ criticisms about the employee’s use of FMLA leave coupled with the “temporal proximity” to her taking that leave.
  3. Based on these facts, “a reasonable jury could find that the employer took adverse actions against the employee that would tend to dissuade her from taking FMLA leave.”

Lessons Learned
: Like it or not, an eligible employee has the legally protected right to take FMLA leave. So, keep the speculation and snarky comments to yourself. If you think an employee is misusing leave, then talk to HR. Get a 2nd opinion. Do not take your frustration out on the employee, not behind the employee’s back or face-to-face.