Types of FMLA Violations

Reviewed by Roan Callister (RC), Editor-in-Chief — Employment Law & FMLA Litigation Practice. Updated May 2026.

The FMLA creates two broad categories of employer violations: interference with FMLA rights and retaliation against employees who exercise them. Within those categories, courts and the Department of Labor have identified a range of specific conduct that violates the Act. Understanding which type of violation applies to your situation affects the damages available, the legal standard you must meet, and the strength of your claim.

Interference with FMLA Rights (29 U.S.C. § 2615(a)(1))

Interference is the broadest FMLA violation category. The statute prohibits any employer from “interfering with, restraining, or denying the exercise of or the attempt to exercise” any FMLA right. Courts have interpreted this broadly to include any action that makes it more difficult for an employee to exercise FMLA rights, even without discriminatory or retaliatory intent.

Common interference violations: refusing to approve a leave request that meets FMLA qualifying criteria; requiring an employee to work during FMLA leave or conditioning approval on completing projects first; failing to notify an employee of their FMLA eligibility after learning of a potentially qualifying reason; miscalculating the 12-month leave year in a way that denies leave the employee is entitled to; counting FMLA absences in attendance systems or point-based discipline programs; failing to maintain the employee’s health insurance during FMLA leave; and returning an employee to a position that is not the same or equivalent after leave.

The legal standard for interference does not require proof of employer intent — only that FMLA rights were denied, delayed, or made more difficult. However, damages in interference cases are limited to actual losses caused by the violation. If an employer failed to designate leave as FMLA but the employee suffered no adverse employment consequence, nominal damages may be the result.

Retaliation / Discrimination (29 U.S.C. § 2615(a)(2))

Retaliation prohibits employers from discharging or discriminating against any employee for opposing a practice made unlawful by the FMLA, or for participating in a proceeding under the Act. Retaliation claims require proof of adverse employment action causally connected to the exercise of FMLA rights — intent matters in a way that it does not for interference claims.

Proving retaliation: most retaliation cases proceed circumstantially, using the McDonnell Douglas burden-shifting framework. The employee establishes a prima facie case by showing: (1) protected activity (taking or requesting FMLA leave); (2) adverse employment action (termination, demotion, pay cut, negative performance review); and (3) causal connection (typically shown by temporal proximity — adverse action shortly after FMLA leave creates an inference of retaliation). The burden then shifts to the employer to articulate a legitimate, non-retaliatory reason for the action. If the employer does so, the employee must show that this reason is pretextual.

Temporal proximity is a powerful tool in retaliation cases. Courts in most circuits have recognized that adverse action within days or weeks of FMLA leave can, by itself, be sufficient to create an inference of retaliation strong enough to survive summary judgment. Adverse action taken months after a return from leave may still be retaliatory but requires additional circumstantial evidence beyond timing alone.

Common retaliation violations: termination shortly after returning from FMLA leave; placing an employee on a performance improvement plan (PIP) immediately after leave when no PIP-worthy performance issues existed before leave; reducing hours or demoting upon return; excluding an employee from advancement opportunities or high-profile projects because of leave usage; and negative performance evaluations that cite leave absences.

Notice and Designation Violations

The FMLA imposes specific notice obligations on employers that are independently actionable when violated. Employers must: notify employees of their FMLA eligibility within five business days of learning of a qualifying reason for leave; provide a Notice of Rights and Responsibilities (DOL Form WH-381); designate leave as FMLA-qualifying and notify the employee of the designation within five business days of having sufficient information to make that determination; and provide a designation notice (DOL Form WH-382) confirming the FMLA designation and the amount of leave that will be counted.

Failure to provide timely notice has two types of consequences. First, it may be an independent violation giving rise to damages if the failure caused the employee harm — for example, if an employee was not told leave was FMLA-covered and took additional leave beyond what was needed, losing their job, when FMLA designation would have protected them. Second, failure to timely designate FMLA can estop the employer from counting the leave against the employee’s 12-week annual entitlement. This estoppel remedy prevents employers from using FMLA protections against employees when those protections were not affirmatively communicated.

Employees also have notice obligations: they must give the employer sufficient information to identify that a qualifying reason for FMLA leave may exist, within a reasonable time. Employees need not mention the FMLA specifically — saying “I need surgery and will be out three weeks” triggers the employer’s obligation to investigate and notify of eligibility.

Miscounting and Misdesignating Leave

FMLA leave is calculated based on a 12-month period using one of four methods the employer selects: the calendar year; any fixed 12-month period; the 12-month period measured forward from the date each employee’s first FMLA leave begins; or a rolling 12-month period measured backward from the date each employee uses FMLA leave. Employers must apply the selected method consistently and cannot choose the method that provides the least leave to any individual employee after leave is requested.

Common miscounting violations: using different calculation methods for different employees; failing to track intermittent leave properly and depleting the employee’s entitlement faster than the law allows; counting leave taken for FMLA-qualifying reasons before the employer designated it as FMLA; and including leave taken for non-qualifying reasons in the FMLA balance. Each of these errors can either deny the employee leave they are entitled to or expose them to adverse action based on an inflated leave balance — both of which are interference violations.

Misdesignation can also help employees: if an employer fails to designate leave as FMLA when it should have, the employee may be entitled to additional FMLA leave because the mislabeled leave cannot count against the 12-week entitlement. This creates a running dispute in intermittent leave cases between employers who want to maximize FMLA designation (to exhaust the entitlement) and employees who may want leave designated as regular sick leave when their entitlement is running low.

Intermittent Leave Abuse Allegations

Intermittent leave is the most operationally disruptive form of FMLA protection for employers and the most frequently contested. Employers who suspect abuse — because absences cluster on Mondays and Fridays, before holidays, or align suspiciously with work deadlines — have limited tools available. They may request recertification of the medical condition more frequently than the standard annual recertification if circumstances have changed or if they have specific information calling the original certification into question. They may require fitness-for-duty certifications before returning from intermittent leave if the condition could affect the employee’s ability to perform essential job functions. They may contact the health care provider through HR (not the employee’s direct supervisor) to authenticate and clarify the certification.

What employers cannot do: discipline the employee for absences that fall within the scope of the FMLA certification; count FMLA-designated intermittent absences in attendance systems; deny leave because the employee follows a pattern that looks suspicious; or require the employee to prove each absence is covered before taking the leave. Taking any of these actions while a valid FMLA certification is in place constitutes interference, regardless of the employer’s suspicion about abuse.

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