FMLA Violations by Employers: Federal Rules and Examples

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FMLA violations by employers are not limited to an outright refusal to approve leave. Federal law protects the process of identifying and administering qualifying leave, the employee’s ability to use that leave, and the return to work afterward. A useful starting point is the broader explanation of the federal FMLA framework, because a violation analysis depends first on whether the employer, employee, and reason for leave fall within the statute.

The two central prohibitions: interference and retaliation

The FMLA’s enforcement provision separates two related forms of unlawful conduct. Interference means interfering with, restraining, or denying the exercise or attempted exercise of an FMLA right. Retaliation or discrimination concerns adverse treatment because a person opposed an unlawful practice, filed a charge, supplied information, or participated in an inquiry or proceeding concerning FMLA rights.

Department of Labor regulations explain that interference reaches more than denying a completed leave request. It can include discouraging an employee from using FMLA leave, manipulating work hours to avoid eligibility, or using protected leave as a negative factor in employment decisions. The rules also prohibit counting FMLA leave under a no-fault attendance policy.

Notice failures can disrupt the entire leave process

A covered employer must post a general FMLA notice and provide additional notices at particular stages of an individual leave matter. When an employer learns that leave may be for an FMLA-qualifying reason, the eligibility notice generally is due within five business days, absent extenuating circumstances. If the employee is not eligible, the notice must give at least one reason.

The employer also must provide a rights-and-responsibilities notice explaining the employee’s obligations and the consequences of failing to meet them. Once the employer has enough information to determine whether leave qualifies, a designation notice generally is due within five business days. A failure to follow these notice rules can constitute interference when it causes harm, although the remedy depends on the loss produced by the violation rather than on a paperwork defect in isolation.

Certification requests have federal limits

An employer may require a medical certification for certain forms of leave, but the request must be timely and must explain the requirement. The employee generally must be allowed at least 15 calendar days to return the certification when it is practicable despite diligent, good-faith efforts. If a certification is incomplete or insufficient, the employer generally must identify the deficiency in writing and allow seven calendar days to cure it, unless that is not practicable despite diligent, good-faith efforts.

Employers may seek authentication or clarification through the channels allowed by the regulations, but an employee’s direct supervisor may not contact the health care provider for that purpose. The certification rules are designed to obtain the information permitted by the FMLA without turning the process into unrestricted access to medical details.

Examples of conduct that can violate the FMLA

• Rejecting qualifying leave for an eligible employee of a covered employer.
• Pressuring an employee to work during protected leave or discouraging use of available leave.
• Failing to provide required eligibility, rights-and-responsibilities, or designation notices.
• Demanding certification on a schedule or in a form that conflicts with federal rules.
• Counting protected absences as attendance violations or using leave as a negative factor in discipline, promotion, or termination.
• Failing to maintain group health coverage during FMLA leave on the same terms required by the statute.
• Refusing restoration to the same job or an equivalent job when the employee is entitled to restoration.

These examples describe categories, not automatic conclusions. The federal rules contain eligibility requirements, notice duties for employees, certification procedures, restoration rules, and limited exceptions that can change whether particular conduct is unlawful. The separate guide to FMLA eligibility and coverage explains the threshold questions that come before the violation issue.

Restoration usually means the same or an equivalent position

At the end of protected leave, an eligible employee generally is entitled to return to the same position or to an equivalent position with equivalent pay, benefits, and other terms and conditions of employment. The right does not provide greater protection than the employee would have had without taking leave. For example, the FMLA does not prevent an otherwise lawful layoff that would have affected the employee even if no leave had occurred.

An employer may require a fitness-for-duty certification in circumstances allowed by regulation. That requirement generally must be part of a uniformly applied policy or practice for similarly situated employees, and the employer must have given advance notice when certification must address the employee’s ability to perform essential job functions.

Enforcement, remedies, and time limits

The Wage and Hour Division of the U.S. Department of Labor investigates FMLA complaints and may supervise settlements or bring enforcement litigation through the Department of Labor. The statute also authorizes a private civil action against an employer, including a public agency, for specified violations.

Available statutory relief may include lost wages, salary, benefits, or other compensation; actual monetary losses in some cases; interest; and an equal amount as liquidated damages unless the employer establishes the statutory good-faith defense. A court may also award appropriate equitable relief, such as employment, reinstatement, or promotion, and the statute addresses attorney’s fees and costs for a prevailing plaintiff.

The ordinary limitations period is two years after the last event constituting the alleged violation. A three-year period applies to a willful violation. These federal deadlines are part of the cause of action and should not be confused with internal workplace procedures or time limits under a different law.

Federal protection can overlap with other law

The FMLA is a federal baseline, not a complete code for every workplace absence. State family-and-medical-leave laws, paid-leave programs, disability-discrimination law, collective bargaining agreements, and employer policies may create separate or more generous rights. An absence that falls outside the federal FMLA therefore is not necessarily unprotected under every other source of law, while compliance with another program does not automatically establish FMLA compliance.

Sources

• 29 U.S.C. § 2615: Prohibited acts
• 29 U.S.C. § 2617: Civil enforcement
• 29 C.F.R. § 825.220: Protection for employees who request or use FMLA leave
• 29 C.F.R. § 825.300: Employer notice requirements
• 29 C.F.R. § 825.305: Medical certification timing
• 29 C.F.R. § 825.307: Authentication and clarification of certification
• 29 C.F.R. § 825.312: Fitness-for-duty certification
• U.S. Department of Labor Fact Sheet #77B: FMLA protections
• U.S. Department of Labor Fact Sheet #28: The Family and Medical Leave Act