Many employers view the Family and Medical Leave Act (FMLA) as a straightforward compliance obligation: determine eligibility, approve leave, and ensure job protection.
But a recent federal court decision highlights a critical reality—FMLA compliance doesn’t end when leave is approved.
A Case That Expands Employer Risk
In White v. Board of Trustees of The University of Arkansas, an employee with multiple health conditions requested and received FMLA leave.
While the employer fulfilled its obligation to grant leave, the situation deteriorated in what followed.
The employee alleged that after requesting and taking leave, her supervisor and others:
- Mocked her and discouraged her from taking leave
- Sent passive-aggressive communications
- Changed her schedule and job duties
- Revoked certain privileges and opportunities
- Failed to restore her to her previous role and conditions
- Ultimately created a work environment that led to her resignation
- She then filed claims for FMLA interference, retaliation, and discrimination.
What the Court Said:
The United States Court of Appeals for the Eighth Circuit clarified an important point for employers:
FMLA claims are not limited to interference or retaliation. Discrimination claims can also exist.
The court recognized three distinct types of FMLA claims:
- Interference – denying or restricting FMLA rights
- Retaliation – taking adverse action because an employee used FMLA leave
- Discrimination – treating an employee differently due to their need for or use of FMLA leave
In this case:
The interference claim was dismissed because the employee received the leave she requested
However, the retaliation and discrimination claims were allowed to proceed, particularly due to changes made to the employee’s schedule and role after her return
Why This Matters for Employers
This decision reinforces a key compliance reality:
Approving FMLA leave is only one part of compliance—how you treat the employee before, during, and after leave matters just as much.
Employers often focus on eligibility and documentation, but risk frequently arises from:
1. Supervisor Behavior
Front-line managers may unintentionally create liability through:
- Discouraging leave usage
- Expressing frustration or skepticism
- Treating employees differently after leave
2. Post-Leave Changes
Even well-intended operational decisions can create risk if they:
- Alter schedules or responsibilities
- Reduce opportunities or benefits
- Fail to restore employees to an equivalent position
3. Inconsistent Practices
Lack of standardized processes can lead to:
- Uneven treatment across employees
- Poor documentation
- Increased exposure during audits or litigation
Common Misconception: “We Approved the Leave, So We’re Covered”
This case directly challenges that assumption.
Even when an employer:
- Properly approves FMLA leave
- Maintains required documentation
- Complies with leave duration requirements
- They may still face liability if their actions after approval could be perceived as punitive, discouraging, or unequal.
Practical Steps for Employers
To reduce risk, employers should take a more comprehensive approach to FMLA compliance:
✔️ Train Managers
Ensure supervisors understand:
- What they can and cannot say about leave
- How to handle employee requests appropriately
- The importance of neutrality and consistency
✔️ Standardize Post-Leave Processes
Implement clear guidelines for:
- Reinstatement to equivalent roles
- Schedule and duty changes
- Communication with returning employees
✔️ Document Decisions
Maintain clear records of:
- Business reasons for any changes
- Employee communications
- Consistent application of policies
✔️ Audit Your Practices
Regularly review:
- Leave administration procedures
- Manager compliance
- Documentation practices
How CNY HR Now Supports Employers
CNY HR Now works with organizations to move beyond reactive compliance and build proactive, defensible HR processes. Contact me at colleen.williams@cnyhrnow.com for support.
Support includes:
- Manager training on FMLA and leave management best practices
- Review and development of compliant leave procedures
- Guidance on post-leave reinstatement and documentation
- Ongoing monitoring of regulatory and legal developments
Final Takeaway
FMLA compliance is not just about approving leave—it’s about how employees are treated throughout the entire process.
Employers that focus only on the administrative side of FMLA may be overlooking one of the most significant areas of risk.