3 Things Managers Can’t Say to Employees Who Request FMLA

As an HR professional, you know that when employees request FMLA leave, those conversations need to be handled carefully. You have to stick to the facts about what the workers need and why.

The problem is, some managers may not realize that — and their stray comments could come back to bite you in court. 

And these three court decisions are the proof.

The real kick in the pants: Two of the lawsuits were filed by employees who’d received all the leave they requested — and the courts said their interference claims were still valid. How’s that possible?

Errant Remarks Land Employers in Court

Here’s a brief recap of what happened in each case — beginning with the words and phrases managers must avoid when discussing an employee’s FMLA leave.

No. 1: ‘We Expect You to Be Here’

In Hefti v. Brunk Industries, a supervisor allegedly responded to an employee’s leave request by saying the company expected him to be at work.

James Hefti, a tool designer, was in hot water with his company, Brunk Industries, a metal stamping company in Wisconsin. Reason: Let’s just say he regularly directed profanity at others, such as calling a lot of people at work “my bitches.”

Hefti ignored multiple warnings from management to stop using obscenities at work. Even so, the supervisor rated Hefti 4 out of 5 on workplace behavior in his quarterly performance review.

Shortly afterward, Hefti sought FMLA leave to care for his son, who suffered from various mental health problems. He said his supervisor was clearly unhappy that he requested leave. According to Hefti, the supervisor told him that the company paid for his insurance — so it expected him to be at work.

That same day, a co-worker complained to the supervisor that Hefti sent him a condescending email.

When Hefti was fired a few days later, he sued for FMLA interference.

The company tried to get the case dismissed, explaining that it began admonishing Hefti for his inappropriate behavior several months before he requested leave.

But the court wasn’t convinced, saying this still “begs the question as to why [the company] took so long to fire [Hefti] in the first place,” the court said.

It emphasized that the company never warned Hefti he could be fired if he “didn’t cool it on his combative co-worker interactions.”

Even more damaging to Brunk’s defense: A few weeks before Hefti was fired, he earned a good score in his quarterly review and was told that he had a “pleasant manner.”

The court denied the motion to dismiss, saying a reasonable jury could conclude that the company decided to fire Hefti because he sought FMLA leave.

No. 2: ‘Taking FMLA Leave Is Inconsiderate’

In Kimes v. University of Scranton, a supervisor allegedly told an employee that the department was short-staffed, so it was “inconsiderate” of her to take FMLA leave.

Lisa Kimes, a public safety officer for the University of Scranton’s Department of Public Safety, requested FMLA leave to care for her son, who has diabetes. She was granted all the time off she requested. 

Even so, 16 days after she requested FMLA leave, Kimes was given a poor evaluation that led directly to the loss of a pay raise. At that meeting, she said her supervisor told her that it was “inconsiderate” of her to take FMLA leave because the department was short-staffed.

Her relationship with the department soured, and her employment was terminated.

Hines sued, alleging FMLA interference and retaliation.

The employer tried to get the lawsuit dismissed, arguing that Hines got all the leave she requested, so it couldn’t have violated the law.

But the court was not swayed by the employer’s argument.

As to the interference claim, the court said a reasonable jury could agree with Hines’ argument – that the supervisor’s comments “chilled” her FMLA rights by making her “afraid to use her FMLA leave in the future.”

Turning to the retaliation claim, the court said the timing of the adverse actions (the poor performance review that led to the denial of a pay raise) was “highly suggestive of retaliatory motive.”

The employer argued that it had a legitimate business reason to give Hines a poor evaluation – as she had “at least four oral or written reprimands” so addressing those in her review was a logical business necessity. 

Under the familiar framework outlined in McDonnell Douglas Corp. v. Green, the burden then shifted back to Hines to show the employer’s proffered reason was pretextual.

Hines argued that “there was not a single notation of a reprimand … in the year preceding the evaluation.” She again pointed to the supervisor’s comment during the performance review – that her decision to take FMLA leave was “inconsiderate” due to staffing shortages.

The court decided that a reasonable jury could find that the employer retaliated against Hines for taking leave under the FMLA.

As such, it refused to dismiss both the FMLA interference and the FMLA retaliation claims, saying a jury needed to hear the case. 

No. 3: ‘I’m Mad!’ 

In Gordon v. United States Capitol Police, an upper-level manager said he was “mad” about FMLA requests in general and vowed to “find a problem” with an employee’s request to take time off under the law.

Judy Gordon was an officer with U.S. Capitol Police when she requested intermittent FMLA leave for periods of incapacitating depression following her husband’s suicide. 

But before Gordon used any FMLA leave, a captain in the police department told her that an upper-level manager had said he was “mad” about FMLA requests in general, and he’d vowed to “find a problem” with Gordon’s request.

Then later, when she went to actually take the leave, her immediate supervisor became irate, denied her request and demanded a doctor’s note. He later relented and granted the request. 

In fact, she was granted all the FMLA leave she requested. 

Still, she filed an FMLA interference lawsuit. And, like the case above, this employer fought to get the lawsuit thrown out before a trial because Gordon had no claim. After all, all of her leave requests were granted.

But ultimately, this case was sent to trial, too. 

A federal appeals court explained that a reasonable jury could conclude that the comments made by company leaders could’ve persuaded Gordon not to request additional FMLA leave time to which she was entitled. For that reason, a trial was needed.

Key Takeaways for HR

Based on a thorough read-through of the courts’ decisions, each of these employers initially appeared to have a decent shot of getting the cases thrown out before facing an expensive trial – if not for the managers’ stray comments. 

These court decisions have two important teaching points for HR:

1. Allowing an employee to take all the FMLA leave they request isn’t a get-out-of-jail-free card. Employers can be held liable for FMLA interference violations if managers are making comments – or taking other actions – that chill an employee’s rights under the FMLA, and 
2. An ill-timed stray remark can be the difference between nipping a case in the bud and racking up hefty legal fees.

HR’s best move: Provide ongoing reminders to managers about what to do when an employee mentions a need for FMLA leave. Specifically, they should:

1. Bring HR into the conversation.
2. Stick to the facts of the employee’s FMLA request.
3. Keep their opinions and other observations to themselves.

If you missed it, check out FMLA Training for Managers: 8 Important Things To Cover for more.