Types of FMLA Violations

Reviewed by our editorial team. Updated May 2026.

FMLA violations fall into two primary statutory categories — interference and retaliation — plus a range of procedural violations involving notice, designation, and leave accounting. Understanding which category applies to your situation matters because the legal standards, available defenses, and damages each type of claim can produce differ significantly. This guide walks through each violation type in detail.

Interference: 29 U.S.C. § 2615(a)(1)

The interference provision prohibits employers from “interfering with, restraining, or denying the exercise of or the attempt to exercise, any right provided under this subchapter.” This language is deliberately broad. Courts have interpreted it to cover any employer action that makes it more difficult, more costly, or more risky for an employee to exercise their FMLA rights — regardless of whether the employer intended to violate the law.

The legal standard for interference does not require proof of discriminatory or retaliatory intent. The employee must show: (1) they were an eligible employee; (2) the employer was a covered employer; (3) the employee was entitled to FMLA leave; (4) the employee gave the employer adequate notice of the intention to take leave; and (5) the employer denied the employee the FMLA benefits to which they were entitled. Intent does not appear in this analysis — interference is a strict liability-adjacent theory with only the good faith defense available to reduce damages.

Specific interference violations recognized in case law: refusing to grant a qualifying FMLA request; granting leave but reducing it below the 12-week entitlement; conditioning FMLA approval on completing pending projects or working through the leave period; telling employees that FMLA leave will hurt their career or cause problems; discouraging leave through negative comments about leave-takers; failing to maintain health insurance during FMLA leave; failing to restore the employee to the same or equivalent position after leave; and counting FMLA absences in attendance systems or performance evaluations.

Damages in interference cases: unlike retaliation claims, interference claims may involve losses that are more limited than full termination damages. An employee who was denied two weeks of FMLA leave but remained employed suffered harm equal to what they lost during those two weeks (medical expenses, care costs, pay for shifts missed without FMLA protection). Significant interference damages arise when the interference resulted in termination (counting FMLA absences in an attendance point system and then firing the employee for reaching the threshold) or when it prevented the employee from caring for a seriously ill family member.

Retaliation: 29 U.S.C. § 2615(a)(2)

The retaliation provision prohibits employers from “discharg[ing] or in any other manner discriminat[ing] against any individual for opposing any practice made unlawful by this subchapter.” Unlike interference, retaliation requires proof of causation between the protected activity (taking or requesting FMLA leave) and the adverse employment action.

The burden-shifting framework: most FMLA retaliation cases proceed under the McDonnell Douglas burden-shifting framework familiar from Title VII litigation. The employee establishes a prima facie case showing protected activity, adverse action, and a causal connection. The burden then shifts to the employer to articulate a legitimate, non-retaliatory reason for the action. Once articulated, the burden shifts back to the employee to show that the employer’s stated reason is pretextual — that it is not the real reason for the adverse action.

Temporal proximity as causal evidence: courts in most circuits have recognized that close temporal proximity between FMLA leave and adverse action can, by itself, create an inference of retaliation sufficient to survive summary judgment. The Sixth Circuit has recognized that termination on the same day an employee returned from FMLA leave is “very close” temporal proximity sufficient to establish causation at the prima facie stage. Adverse action within two to four weeks of FMLA leave is generally sufficient; the causal inference weakens as the time gap increases, requiring additional circumstantial evidence at longer intervals.

Pretext evidence: beyond temporal proximity, common pretext evidence includes: the employer’s treatment of similarly situated employees who did not take FMLA leave; the employer’s deviation from its own policies in how it handled the adverse action; shifting or inconsistent explanations for the adverse action; negative comments about the employee’s leave use by decision-makers; and the timing of performance improvement plans that appeared after leave was taken when no performance issues were documented before.

The causation standard: the circuits are divided on whether FMLA retaliation requires “but-for” causation (the adverse action would not have occurred but for the FMLA leave) or the less demanding “motivating factor” standard (the FMLA leave was a motivating factor in the decision even if other reasons also existed). The Sixth Circuit has applied but-for causation in recent decisions. The standard applicable in your circuit affects the difficulty of proving retaliation and should be discussed with employment counsel.

Notice and Designation Failures

The FMLA regulations at 29 C.F.R. Part 825 impose specific notice obligations on both employers and employees. Employer violations of these obligations are independently actionable and can affect the validity of the employer’s leave counting.

Employer notice obligations: within five business days of learning that an employee may need FMLA leave, the employer must provide a Notice of Eligibility (DOL Form WH-381, or equivalent) informing the employee whether they are eligible and, if not, why not. After the employee returns the medical certification, the employer must provide a Designation Notice (DOL Form WH-382) within five business days, informing the employee whether the leave is approved as FMLA and how much leave will be counted.

Consequences of notice failures: failure to provide timely eligibility or designation notice can have significant consequences for the employer. Courts have held that failure to designate leave as FMLA when it should have been designated estops the employer from counting that leave against the employee’s 12-week entitlement. This means an employer that fails to designate FMLA may not be able to discipline or terminate an employee for exhausting their leave entitlement if the leave would have been FMLA-protected had it been properly designated.

Employee notice obligations: employees must provide adequate notice of the need for FMLA leave when the need is foreseeable, at least 30 days in advance if possible. When the need is not foreseeable, employees must notify the employer as soon as practicable. The notice does not need to be formal — saying “I need to be out next week for surgery” is sufficient notice even without mentioning the FMLA. The employer’s obligation to notify and designate is triggered by sufficient information, not by the employee using the magic words “FMLA leave.”

Miscounting and Misdesignating Leave

Leave accounting is a technical area where errors can produce either denial of leave the employee is entitled to or discipline based on an inflated leave balance. The FMLA regulations specify four permissible methods for calculating the 12-month leave year, and the employer must select one method and apply it consistently.

The four methods: (1) the calendar year; (2) any fixed 12-month period the employer designates (fiscal year, anniversary year); (3) the 12-month period measured forward from the date each employee’s first FMLA leave begins; and (4) a rolling 12-month period measured backward from the date an employee uses any FMLA leave. The rolling backward method is most protective of employer interests (it prevents employees from “stacking” FMLA entitlements across a year-end boundary) and is widely used by large employers.

Common miscounting violations: using different calculation methods for different employees; failing to count pre-FMLA leave toward a certification period, then using it to discipline the employee after designation; counting FMLA leave against PTO balances when the employer has not properly invoked concurrent PTO substitution under its policies; and including post-separation leave in the calculation in ways that affect back pay calculations. Each of these errors can produce either an interference violation (leave denied) or a records dispute (leave balance used in adverse action proceedings).

Intermittent Leave and Pattern Disputes

Intermittent leave generates more FMLA litigation than any other context because it creates inherent conflict between employees’ right to take leave as needed for qualifying conditions and employers’ need for scheduling predictability. The legal framework strongly favors employees: an employer cannot discipline for absences that are FMLA-designated, cannot require advance notice for unforeseeable intermittent leave (only “as soon as practicable” notice), and cannot reduce an employee’s entitlement based on perceived abuse without going through the recertification process.

Recertification: when an employer has reason to doubt the validity of an existing certification — because the leave pattern is inconsistent with the stated condition, because new information has emerged about the employee’s condition, or because circumstances have changed — it can request recertification as often as every 30 days when the employee has taken leave. The recertification goes to the employee’s treating health care provider, who must confirm whether the condition is consistent with the pattern. If the provider confirms consistency, the employer must continue designating the leave. If the provider says the pattern is not consistent with the condition, the employer has grounds to investigate further and potentially deny future leave under that certification.

The key constraint: the employer cannot discipline for FMLA-designated absences even while recertification is pending. Discipline for absences that are later confirmed to be FMLA-qualifying is an interference violation. The proper sequence is recertification first, adverse action only if recertification confirms the absences were not FMLA-qualifying.

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