Ask Leslie: Can The Wrong FMLA Comments Lead To Liability?

By Leslie Zieren, The McCalmon Group, Inc.

We have 168 employees. Six of them take intermittent FMLA leave, and it is an administrative nightmare to keep up with the paperwork required each time leave is taken. Can I suggest the employees try to take larger blocks of leave time?

No. It is not a good idea to suggest the employees to cut down on the number of intermittent periods of FMLA leave. In fact, just making that suggestion could be construed as "interfering" with their FMLA rights.

In a recent case, a benefits manager allegedly told an employee who takes intermittent leave for PTSD that the employee had "taken serious amounts of FMLA…don't take any more FMLA. If you do so, you will be disciplined."

Even though the manager did not discipline or fire the employee, the employee sued the employer and alleged interference with his FMLA leave rights. The court cited the FMLA language that makes it illegal for an employer to "interfere with, restrain, or deny" the exercise of FMLA leave rights, and held that "interfering" includes verbally discouraging an employee from taking their leave.

Managers should be trained on all aspects of FMLA, including refraining from uttering any discouraging, or critical, words about taking or asking for FMLA leave.

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.

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