Second Circuit: Employers Can Violate FMLA Merely By Interfering With Use of Benefits

By Gregory P. Feit

Recently, in Kemp v. Regeneron Pharmaceuticals, Inc.,[1] the United States Court of Appeals for the Second Circuit ruled that an employer can violate the Family and Medical Leave Act (FMLA) merely by discouraging an employee’s request for FMLA leave, even if the employer ends up granting the requested leave.

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Under the FMLA, eligible employees are entitled, among other things, to take 12 workweeks of leave in a one-year period to care for a sick child,[2] and employers may not “interfere with, restrain, or deny the exercise of or the attempt to exercise” an employee’s rights under the statute.[3]

In the Kemp case, plaintiff was a manager at Regeneron who had a disabled child with serious medical conditions.  Kemp had previously taken approved FMLA leave in 2015 to care for her daughter, and also in the spring of 2016 to have surgery for herself.  After her daughter had surgery in June 2016, plaintiff worked remotely while her daughter recovered.  Kemp alleged that, when she returned to the office, her supervisors expressed concerns about the amount of time she had been out, told her that she needed to be more visible in the office, and limited her to one day of remote work per week, despite the fact that her colleagues regularly worked from home.  One month later, Kemp applied for intermittent FMLA leave to continue caring for her child, and Regeneron approved the leave.  Kemp asserted an FMLA cause of action, alleging that Regeneron had unlawfully interfered with her right to take leave.

In the United States District Court for the Southern District of New York, Regeneron moved for summary judgment on Kemp’s FMLA claim.  The District Court granted the motion, holding that because Regeneron did not reject the request for FMLA leave but merely discouraged Kemp from taking it, she could not establish any FMLA violation.

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On appeal, Kemp argued that, although Regeneron never denied her request for FMLA leave to care for her child, the company’s alleged attempts to discourage her from taking such leave and the restrictions it placed on her remote work could constitute unlawful interference with the exercise of her FMLA rights.

The Second Circuit agreed on this point, concurring with the U.S. Department of Labor’s position in an amicus brief that “an employee is not required to demonstrate an actual denial of benefits to establish a violation of section 2615(a)(1) and that interference or restraint alone, which includes discouragement, is enough to establish such a violation.”

The Second Circuit acknowledged that the District Court had relied on language in a prior Second Circuit case (Graziado v. Culinary Institute of America), in which the court stated that “to prevail on a claim of interference with her FMLA rights, a plaintiff must establish,” among other things, “that she was denied benefits to which she was entitled.”  The Kemp court noted, however, that, the District Court’s reliance on that language was misplaced, because in another portion of that prior appellate decision, the Second Circuit had also set forth the full applicable legal standard – namely, that “[t]o succeed on a claim of FMLA interference, a plaintiff must establish that the defendant denied or otherwise interfered with a benefit to which she was entitled under the FMLA.”

The Kemp court further explained that its interpretation of the FMLA reflected the statute’s “plain, unambiguous text, according to which it is unlawful for an employer to ‘interfere with, restrain, or deny’ FMLA rights.”

The Second Circuit ultimately dismissed Kemp’s FMLA claim on other grounds – finding, e.g., that Regeneron did not act “willfully” when it interfered with her use of FMLA benefits, including because the FMLA protects rights to take paid leave, but “does not entitle employees to work remotely or make it unlawful for an employer to punish an employee who works remotely.”

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Employers should take note of the Kemp court’s elimination of any doubt as to whether they can violate the FMLA merely by interfering with an employee’s benefits under the FMLA – including potentially by discouraging the exercise of such rights – without actually denying the employee’s request for those benefits.  According to the Second Circuit, they can, because the denial of benefits under the FMLA is not a necessary element for demonstrating a claim for interference with FMLA rights.

[1] 2024 WL 4111789 (Sept. 9, 2024).

[2] 29 U.S.C. § 2612(a)(1).

[3] Id. at § 2615(a)(1).

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Gregory Feit who counsels clients on employment law, litigation, arbitration, negotiation, and trial advocacy. Mr. Feit is admitted to practice in New York.