How to Grant an FMLA Leave Request – and Still Be in Big Trouble

A federal appeals court has ruled that an employer can violate the FMLA even without denying an employee’s request for FMLA leave.

How is this possible, you ask?

Let’s take a look at what happened in a recent case, which demonstrates the scope of protection the FMLA provides for covered employees.

FMLA Leave Spat Develops

In 2008, Denise Kemp started working as an auditor for a company called Regeneron. By 2016, Kemp had been promoted three times and doubled her salary. At that time, she was a senior manager and supervised several employees.

In June of 2016, Kemp started working remotely, including from a hospital while her disabled daughter recovered from surgery.

When she returned to the office after the surgery, supervisors expressed concerns about how long she had been away and told her she could work remotely no more than one day a week.

A supervisor also encouraged her to speak with HR about using PTO or intermittent FMLA leave instead of remote work for any additional time she spent away from the office.

Intermitted FMLA Leave Granted

In mid-July of 2016, the Regeneron approved Kemp’s request for intermittent FMLA leave to continue to care for her daughter. At around the same time, she and her supervisor began talking about transitioning her to a similar role, but with fewer managerial responsibilities.

Kemp initially accepted a new managerial position that was created for her, but before she took on the new role she told Regeneron that she was retiring. She said she made that decision because Regeneron would not let her work remotely. She rejected the employer’s offer to transfer her to a different position, and she retired in early January of 2017.

Kemp then sued Regeneron, accusing it of illegally interfering with her rights under the statute by banning her from working remotely for more than one day a week.

She also said Regeneron violated state law by discriminating against her based on her relationship with her disabled daughter, retaliating against and constructively discharging her from employment.

Lower Court Rules for Employer

A federal district court granted summary judgment in Regeneron’s favor. It said Kemp did not show Regeneron violated her FMLA leave rights, finding that Regeneron did not violate her FMLA rights because it never denied her any FMLA leave benefits. As a separate basis for its ruling in favor of the employer, it also determined that Kemp waited too long to file her lawsuit.

Kemp filed an appeal.

The U.S. Court of Appeals for the Second Circuit affirmed the ruling for Regeneron on the basis that the suit was filed too late. But importantly, it also said an employer can illegally interfere with an employee’s FMLA leave rights even when it grants the FMLA benefits to which the employee is entitled.

“We hold that an employer can violate the FMLA merely by interfering with the employee’s benefits under the FMLA without actually denying the employee’s request for those benefits,” the appeals court said.

Appeals Court Agrees With DOL

With its holding, the appeals court agreed with the position of the federal Department of Labor. In a brief it submitted to the court in support of Kemp’s position, the Department of Labor said employers can violate the FMLA’s interference provision without actually denying FMLA benefits. Instead, the brief urged, it is enough to show “interference or restraint alone, which includes discouragement.”

This result reflects the statute’s plain language banning interference, the appeals court agreed.

This is not the first court to rule that merely discouraging an eligible employee from taking FMLA may violate the FMLA’s interference provision. In 2022, the U.S. Court of Appeals for the Seventh Circuit similarly decided that the denial of benefits is not a prerequisite to a successful claim of unlawful interference with FMLA rights.

Important Note to Employers

The importance of this point for employers can hardly be overstated. It might not be unreasonable for an employer to believe they are out of the woods when it comes to FMLA claims as long as they ultimately granted a request for FMLA leave to which an employee is entitled.

But as this decision shows, that approach is the wrong one for employers to take.

Remember: Employers can violate the FMLA by interfering with an employee’s exercise of FMLA rights – even if that interference falls short of denying FMLA benefits.

Kemp v. Regeneron Pharmaceuticals, Inc., No. 23-174-cv (2d Cir. 9/9/24).