I was reading one of the recent FMLA law cases - Moss v. Bluecross, Blueshield of Kansas, Inc.,and thought it would be helpful to set out the basics of an FMLA interference/entitlement claim. What’s great about an interference/entitlement claim is the employee does not have to prove that the employer intended to violate her FMLA rights:

Under the interference theory, if an employer interferes with an employee’s FMLA-created right to a medical leave, it has violated the FMLA, regardless of its intent.

A prima facie case of interference requires a showing that: (1) plaintiff was entitled to FMLA leave; (2) that an adverse action by the employer interfered with plaintiff’s right to take FMLA leave; and (3) that the employer’s adverse action was related to the exercise or attempted exercise of plaintiff’s FMLA rights.

In this particular case, the employer argued that the employee was not entitled to FMLA leave because she didn’t give the required notice of her need for FMLA leave. The FMLA requires 30 days’ notice for foreseeable leave or notice as soon as practicable for unforeseeable leave. The court indicated that the issue of proper notice was separate from the issue of an employer’s interference with the exercise of an employee’s FMLA rights. Disputed facts prevented a determination by the court on the issue of whether proper notice was given.

I’ll try to give a quick facts summation. This must be a typical fact scenario where an employee misses work and continues to miss work as her condition gets worse and gives vague statements (according to the employer) of how long she will be out and what exactly her health situation is. The employee, of course, argues that she followed the employer’s absenteeism rules to the hilt and explicitly described her health condition to the employer. Finally, this particular absence (especially in light of several other past periods of absence) is the straw that breaks the camel’s back and the employer fires the employee - leading to an FMLA suit.

What else is interesting about an interference claim is that

even when an employee requests and can demonstrate an entitlement to FMLA leave, she has no greater rights than the employee who continues to report to work. Thus, an employee may be terminated, even where the termination interferes with her ability to take FMLA leave, so long as she would have been terminated regardless of her leave request.

Of course, the burden is on the employer to prove that the employee would have been terminated regardless of her leave request.

In the instant case, the employer argued that the employee misled it about her health condition thus disqualifying her from entitlement to FMLA leave. The court again said that material facts were in dispute precluding dismissal of the claim on summary judgment. I mention it merely as an example of how an employer argued against the first element of the prima facie case.

To establish the second element of an interference claim, the employee must show that she was prevented from taking the full twelve weeks’ of leave guaranteed by the FMLA, denied reinstatement following leave, or denied initial permission to take leave. In the instant case, the plaintiff argued that she was denied the right to reinstatement. The employer argued that the right to reinstatement did not accrue because the plaintiff was not on FMLA leave as she did not give proper notice of need for leave and/or misled the employer concerning her health condition.

Finally, the third element concerns whether the employer’s adverse action was related to the exercise or attempted exercise of plaintiff’s FMLA rights. Here, the employer argued that the employee cannot prove the third element of her prima facie case since she was terminated because she did not call in to report her absences on two or more consecutive work days, and that the FMLA does not exempt employees from compliance with the employer’s attendance and reporting requirements. Again, the court found that this was a disputed material fact (whether plaintiff called in to work to give notice of her absences as the plaintiff claimed that she did and the employer claimed otherwise) precluding summary judgment.

In essence, the employer is arguing that its rules requiring employees to call in if they are absent apply to all employees whether on FMLA leave or not; therefore, you can still lose your job for not following the rules even if you are on FMLA leave.

This case summary should give a basic idea on interference claims. Intent to interfere with an employee’s FMLA rights is not required but this is tempered by the employer’s ability to avoid liability by proving that the adverse action would have occurred despite the employee’s being on FMLA leave.

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