FMLA Violation By Mere Discouragement, Second Circuit Holds

Employment Law

December 18, 2024

An employer can violate the Family and Medical Leave Act (FMLA) merely by interfering with an employee’s use of statutory benefits—even if the employer ultimately grants the benefits to which the employee is entitled, the Second U.S. Circuit Court of Appeals has ruled.

Denise Kemp, a manager at Regeneron Pharmaceuticals, spent most of June 2016 working remotely to take care of her child who had a serious medical condition.

When she returned to the office, her supervisors expressed concern about the amount of time Kemp had been away and limited her to one day of remote work per week. At the same time, however, her supervisor also encouraged Kemp to speak with someone in the Human Resources Department about using paid time off or intermittent FMLA leave, rather than work remotely.

Kemp then applied for intermittent FMLA leave to continue to care for her daughter and Regeneron approved the leave.

During this time, conversations began about a possible transition to a role with a similar status and title but with fewer managerial responsibilities for Kemp. Regeneron developed the position and Kemp formally accepted it.

However, she notified her employer that she planned to retire, a decision spurred by Regeneron’s refusal to let her work remotely.

Kemp then filed suit, alleging that Regeneron had violated her rights under both the FMLA and New York state law.

Regeneron moved for summary judgment. The district court granted the motion, holding that because Regeneron never denied Kemp’s request for FMLA leave but merely discouraged her from taking it, she failed to prove that the employer had violated her rights under the FMLA.

Kemp appealed. Although she acknowledged that Regeneron never denied her formal request for FMLA leave to care for her daughter, she argued that the employer’s attempts to discourage her from taking FMLA leave and the limitations the company placed on her remote work unlawfully interfered with the exercise of her rights under the statute.

The unanimous federal appellate panel agreed.

“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 court wrote.

An employee is not required to demonstrate an actual denial of benefits to establish a violation of section 2615(a)(1)—interference or restraint alone, which includes discouragement, is enough to establish such a violation.

The district court erred to the extent it required Kemp to demonstrate that Regeneron denied her requests for FMLA leave in order to prove her FMLA claim, the court said.

However, the court affirmed summary judgment in favor of the employer.

Kemp failed to adduce any admissible evidence that Regeneron acted willfully when it interfered with her use of FMLA benefits, the court found.

“We see no support in the record for the argument that Regeneron acted in disregard of its obligations under the FMLA,” the court said. “To the contrary, Regeneron appears on this record to have tried to comply with rather than flout its obligations under the FMLA.”

Kemp took the position that Regeneron substantially limited her remote workdays and punished her for working remotely, but the court explained that this argument misunderstood the nature of the benefits conferred by the FMLA.

“The FMLA protects Kemp’s right to take paid (and thereafter uncompensated) leave for specified reasons and for a specified number of weeks during a 12-month period,” the court explained. “It does not entitle employees to work remotely or make it unlawful for an employer to punish an employee who works remotely. Remote work may be another form of accommodation, but it is not ‘leave’ within the meaning of the statute.”

To read the opinion in Kemp v. Regeneron Pharmaceuticals, Inc., click here.

Why it matters: The Second Circuit’s opinion provides a valuable lesson for employers that interference with an employee’s FMLA benefits can occur without a formal denial. Instead, interference or restraint—even discouragement—is enough to establish a violation of the statute, the federal appellate panel ruled.