Sorry, no, employers cannot unilaterally reduce FMLA leave entitlements below 12 weeks


Oh, word?

— none of you, hopefully.

The Family and Medical Leave Act states that an eligible employee “shall be entitled to a total of twelve workweeks of leave during any twelve-month period” for several qualifying reasons. When I look up the word “shall” in the dictionary, it says, “used in laws, regulations, or directives to express what is mandatory.” So, employers should not mess with the 12-week FMLA entitlement.

Except, one didn’t get the memo (allegedly).

According to the plaintiff-employee in this case, the defendant-employer discouraged him from availing himself of his right to take FMLA leave by reducing his permitted FMLA leave from 60 days to just 20 days annually.

Has the plaintiff alleged a cognizable FMLA interference claim?

The court thought so.

It is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided in the FMLA. To assert an interference claim, any employee only has to show that he was entitled to benefits under the FMLA and that his employer denied them. An interference claim includes refusing to authorize FMLA leave and discouraging an employee from using such leave. Since the court was considering whether the plaintiff’s FMLA interference claim could survive a motion to dismiss, it accepted all factual allegations of the Complaint as true. It drew all reasonable inferences in favor of the plaintiff too.

The Complaint specifically alleged that, because of the defendant’s actions, the plaintiff “did not take FMLA leave on about 17 days when he could have done so.” Thus, at this early stage of the proceedings, before any discovery, the court concluded that a reasonable jury might find that the defendant’s alleged conduct discouraged the plaintiff from taking family medical leave. That’s FMLA interference.

Will the plaintiff eventually prevail in this case? Who knows?

I know that the FMLA has specific baseline rules (e.g., 12 weeks of leave, employee eligibility requirements, etc.). If you want to be more generous, i.e., by removing the 50/75 requirement, nothing stops you from doing it. But don’t mess with the minimum requirements of the FMLA.

“Doing What’s Right – Not Just What’s Legal”
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