FMLA Interference & Retaliation Risk Evaluator

Defending Against FMLA Interference & Retaliation Claims in 2026

FMLA litigation is notoriously difficult for employers to defend, primarily because the law places a heavy burden of proactive compliance on HR departments and supervisors. It is not enough to simply approve FMLA requests that arrive fully formatted on your desk. HR must actively scan employee relations and attendance patterns to ensure that protected rights are not being trampled by general attendance policies or skeptical managers.

1. Understanding the Legal Trigger: Explicit vs. Implicit Requests

One of the most common legal pitfalls is assuming that FMLA protections are only activated when an employee officially submits FMLA paperwork.

Federal courts have consistently ruled that once an employee provides sufficient notice that they need time off for a potentially serious health condition—such as saying *"I can't make it to my shift today because my chronic migraines are flaring up"*—the **employer's duty to inquire is triggered**.

If the employer fails to provide the employee with an FMLA Notice of Eligibility (WH-381) within 5 business days of that call-out, and instead applies unexcused points under a standard attendance policy, the employer has committed FMLA interference.

2. Training Managers: The First Line of Defense

In over 80% of retaliation lawsuits, the primary evidence is a comment made by a direct supervisor. Statements like *"Are you really sick again?"*, *"Your absences are killing team morale"*, or *"We need someone who is 100% committed"* are considered smoking guns in court.

HR must train supervisors to keep their skepticism to themselves. A manager's job when an employee calls out for medical reasons is strictly limited to logging the absence and notifying HR. They must never interrogate the employee or express frustration regarding coverage issues.

3. Auditing Attendance Records to Erase Protected Points

If an employee is retrospectively approved for FMLA (or CFRA in California) or has a documented disability under the ADA, HR must immediately audit their attendance logs. Any disciplinary warning or point issued for those protected dates must be formally expunged. Leaving "unexcused" points on a record for protected days, even if it does not lead to immediate termination, is a distinct violation that can be cited in subsequent lawsuits.