A federal district court in Arkansas recently had to decide whether it is interference of the Family and Medical Leave Act ("FMLA") for an employer to repeatedly call an employee on FMLA leave and always ask when they were going to return. Unique to this case is the fact that although the employer telephoned the plaintiff on a weekly basis and at one point, in response to the plaintiff asking, told the plaintiff that she "should return to work," the plaintiff used all of her entitled FMLA leave. However, even though the plaintiff used up all of her FMLA leave, the court noted the "chill theory," which is where a chilling of FMLA rights is sufficient for an FMLA interference claim. Thus, the court held that the plaintiff had a right not to be discouraged from taking FMLA leave and denied defendant's motion for summary judgment on the interference claim. The court did grant the defendant's motion for summary judgment on plaintiff's retaliation claim.
The case is Terwilliger vs. Howard Memorial Hospital et al., Case No. 09-CV-4055.
Hat tip: FMLA Insights