2d Circuit adds new gloss to FMLA statute

The Court of Appeals has placed a new gloss on the Family and Medical Leave Act, holding for the first time that an employer violates the FMLA if it discourages employees from seeking family or medical leave. Despite that holding, the plaintiff loses the appeal on statute of limitations grounds.

The case is Kemp v. Regeneron Pharmaceuticals, Inc., issued on September 9. I briefed and argued the appeal. Plaintiff needed leave to care for her disabled daughter. Her supervisor voiced concern about the amount of time that plaintiff had been away on a prior medical leave and said plaintiff needed to be in the office more often and attend meetings in-person, not by phone. Defendant gave plaintiff one day off per week for medical leave even though other workers regularly worked from home. While defendant ultimately gave plaintiff intermittent FMLA leave, management suggested that plaintiff consider a less demanding position. Defendant developed a new senior management position for plaintiff in October 2016, and she accepted it in November 2016. Plaintiff ultimately resigned in December 2016.

The Court of Appeals (Lohier, Lee and Perez) affirms the grant of summary judgment to the employer, holding as follows:

1. "We hold that an employer can violate the FMLA merely by interfering with the employee’s benefits under the FMLA without actually denying the employee’s request for those benefits. We thus agree with the United States Department of Labor as amicus curiae in this case 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.'”

2. While the record suggests that defendant might have interfered with plaintiff's FMLA rights, since she filed this lawsuit more than two years after the incident happened (the general statute of limitations under FMLA), she has to show the interference was willful. If so, then plaintiff can take advantage of the three-year statute of limitations. While "[a]n employer acts willfully under the FMLA when it knows 'or show[s] reckless disregard for the matter of whether its conduct was prohibited by the' FMLA," and plaintiff argues that defendant recklessly disregarded its obligations by limiting her remote work so that she would need to ration her FMLA leave, the Court holds that "Regeneron appears on this record to have tried to comply with rather than flout its obligations under the FMLA." Plaintiff cannot show that defendant intended to fire her if she took FMLA leave, and the FMLA "does not entitle employees to work remotely or make it unlawful for an employer to punish an employee who works remotely. Remote work may be another form of accommodation, but it is not 'leave' within the meaning of the statute." Interesting that the Court of Appeals resolves a willfulness issue on the summary judgment record. I argued this determination is for the jury, but the Court of Appeals says otherwise. I see this happen as well when a court finds that a plaintiff was not entitled to punitive damages even if the plaintiff can prove discriminatory intent.

3. Plaintiff also sued under the New York Human Rights Law, which carries a three-year statute of limitation, over associational discrimination, based on plaintiff's association with her disabled daughter. While the parties dispute the evidence on this claim, the Court of Appeals instead focuses on the statute of limitations. Plaintiff received definite notice of the adverse action in July 2016, within the three year SOL, but she did not bring the lawsuit until November 2019, after the SOL expired. Plaintiff argued that the terms of the new assignment were not clear until later that year. The Court of Appeals says otherwise, that things were clear enough in July 2016, and that filing in November 2019 was too late.

The holding on FMLA discouragement is significant, as it adds a new wrinkle to the statute. This analysis does not help plaintiff, but it helps other employees who want to take FMLA leave but were discouraged from doing so.