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The Contours of FMLA Unlawful Interference


Most workers are familiar with the Federal Family and Medical Leave Act ("FMLA") and the protections it provides. Basically, the FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise" any of the rights provided by the statute. This is often referred to as the "interference" provision. The FMLA also prohibits employers terminating or otherwise discriminating against employees for "opposing any practice made unlawful" by the statute. This is the "retaliation/discrimination" provision. So, what is considered unlawful interference?

Modifications to shifts may not be unlawful interference

A recent case out of Maryland dealt with the implementation of a universal rotating shift schedule that occurred while an employee was out on FMLA leave. She filed a lawsuit claiming unlawful interference. The court held that, despite the fact that the new schedule affected the plaintiff the most, the decision to modify the schedule actually took place before she began her leave. Furthermore, the basis for the decision was business related.

No interference despite being the employee most affected

In the case of Quigley v. Meritus Health, Inc., the employee was the only sonographer with a permanent shift at the level-three trauma center. She worked the weekend night shift exclusively and was the only one to do so. Then, in late 2011, the employee agreed to change her schedule to five eight-hour shifts, Wednesday through Sunday, and again was the only sonographer with this type of permanent shift. All other sonographers worked on rotating schedules.

When the employee was out on approved FMLA leave in 2012, the hospital implemented a universal rotating shift schedule which required all sonographers to rotate between day shifts, evening shifts, and night shifts. This change most dramatically affected the plaintiff because she was the only technician not already on a rotating schedule. After learning of schedule modification, she did not return to work and was subsequently terminated.

The employer had a legitimate business reason for the schedule change

The court held that the hospital’s decision to implement a universal rotating schedule was developed and implemented. The motivating factor, according to the employer in this case, was the inability to secure night-shift ultrasound coverage after the plaintiff was absent on one occasion. As a result of the absence, management believed it would be easier to ensure coverage of each shift. Although a meeting was held regarding the new scheduling, the plaintiff did not attend the meeting.

The right to restoration following FMLA leave is not unconditional

One of the common misconceptions about FMLA leave is that the right to restoration is absolute. Despite the fact that many employees are entitled to return to the same position and the same or an equivalent work schedule, employees returning from FMLA

do not have a greater right to reinstatement than any other employee. Employers are allowed to deny restoration based on a legitimate business reason unrelated to the exercise of FMLA rights.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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