by Anders M. Greene-Crow*

Although the Family and Medical Leave Act (“FMLA”) plainly states that employers may not “interfere [with], restrain, or deny” employee benefits, some circuits have impermissibly narrowed this prohibition by only permitting plaintiffs who have been outright denied benefits to proceed with claims alleging violations of this provision. However, the common law test these courts cite to, which defines interference for FMLA purposes, does not justify this narrowing approach. This Contribution argues that the common law test uses “deny” as a shorthand for various forms of interference with employee benefits, including those which stop short of an actual denial of benefits. Courts cannot use this common law test to justify narrowing the statute because the test’s history and purpose do not support doing so.

Congress passed the Family and Medical Leave Act of 1993 (“FMLA”) because it was concerned about the lack of job security that workers with caregiving responsibilities or serious medical conditions face.1 The FMLA requires covered employers to provide employees with up to twelve weeks per year of unpaid leave to attend to caregiving duties of their own or their family members’ medical needs. Under the FMLA, employers must protect employees’ jobs and maintain their health benefits while they are on leave.

Section 2615(a)(1) of the FMLA prohibits employers from “interfer[ing with], restrain[ing], or deny[ing]” access to their employees’ benefits.2 Prohibited interference short of denial encompasses any employer’s attempt to prevent an employee from using FMLA benefits that prejudices the employee—that is, causes them harm, generally in the form of lost compensation or benefits, other monetary loss, or being pressured to delay or otherwise restructure leave differently than intended.3 Failing to inform or misinforming employees regarding their FMLA rights, attempting to dissuade employees from taking FMLA leave, or expressing anger or issuing threats in response to FMLA requests are typical examples of unlawful interference under § 2615(a)(1).4 However, some courts have come to rely on an improperly narrow interpretation of “interference” when delineating whether a plaintiff has made out a prima facie case, stating that an employee must be “denied” benefits to proceed with their claim.5

Circuit courts are split over whether an employer who discourages an employee from accessing their FMLA benefits but ultimately grants those benefits can be charged with interfering with FMLA access. The Third Circuit, for example, has held that plaintiffs cannot make out a prima facie case that their employer interfered with their access to FMLA benefits unless they can show they did not receive the benefits they were owed.6 Conversely, the Seventh Circuit has held that attempting to block an employee from accessing FMLA benefits constitutes interference, even if the employer ultimately permits the employee to use those benefits in full.7 This Contribution argues that courts which only allow interference claims to proceed when an employer actually denies FMLA benefits have impermissibly narrowed congressional intent by misapplying the common law test for interference claims.

The narrowing of the FMLA in this way by courts like the Third Circuit is especially surprising because the text of the FMLA’s interference provision clearly prohibits employer actions that impede employees’ access to benefits even when those actions do not outright deny FMLA benefits. The FMLA states “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”8 The “or” preceding “deny” indicates that this is a disjunctive list under which any one of the listed actions—interference, restraint, or denial—suffices to violate the FMLA.9 Well-established rules of statutory construction dictate that statutes must be read in a way that gives effect to every word—making it impossible to fairly read this statute as requiring employees to have been denied benefits in order to have a claim.10 Per Desert Palace v. Costa, when “the words of the statute are unambiguous, the judicial inquiry [should be] complete.”11 Nonetheless, muddled language in the common law test, discussed below, used to evaluate prima facie interference cases, has led courts reviewing pre-trial motions for summary judgment or dismissal to narrow the actions prohibited by this FMLA provision to denial alone.

The Third Circuit is the leading appellate court that requires an employee to be denied benefits to make out an interference claim.12 In Ross v. Gilhuly, the court dismissed a case where an employer fired an employee for failure to meet Performance Improvement Plan standards, despite the fact that the plan was implemented immediately before the employee went on FMLA leave, preventing the employee from making the required improvements.13 The court held that because the employee was not denied leave, the employer could not have violated § 2615(a)(1).14 Even though the statute’s disjunctive list––“interfere with, restrain, or deny”––explicitly prohibits actions other than outright denial of benefits,15 the court took its narrower view from a misconception of a common law test. This common law test was articulated in Johnson v. Community College of Allegheny County, which stated that an FMLA interference claim requires plaintiffs to show:

  1. [The plaintiff] was an eligible employee under the FMLA;
  2. The defendant was an employer subject to the FMLA’s requirements;
  3. The plaintiff was entitled to FMLA leave;
  4. The plaintiff gave notice to the defendant of [their] intention to take FMLA leave; and
  5. The plaintiff was denied benefits to which [they were] entitled under the FMLA.16

If taken at face value, the fifth prong of this test reduces the scope of Congress’s prohibitions under § 2615(a)(1) without explanation. However, the history of this test reveals that the originating court did not intend such narrowing.

The Johnson test, on which Ross relies, originated in the Southern District of New York case Santos v. Knitgoods Workers’ Union, Local 155.17 The plaintiff alleged that her employer violated § 2615(a)(1) by firing her while she was on FMLA leave.18 The Court’s five-part test proceeded as applied in Ross and in Johnson, including by stating as its fifth prong that the plaintiff had to show “that defendants denied her benefits to which she was entitled by the FMLA.”19 Yet, in actuality, the Santos court did not require the denial of benefits to satisfy that prong: the plaintiff’s employer approved her leave, and thus did not deny her benefits, but then fired her while she was on leave.20 Thus, although the Santos court said FMLA leave must have been “denied,” the court did not mean that an employee had to literally be denied benefits to make out a claim. Instead, the court used this language as a shorthand for all interference while still prohibiting employer interference with FMLA benefits even where leave was granted.21

This conclusion that the Santos court was using a shorthand rather than requiring denial is corroborated by the two cases it relied upon to develop its five-part test. The first opinion, Vicioso v. Pisa Brothers, Inc., only lists the first four steps of the Santos test in its description of the requirements to make a valid claim under the FMLA.22 Although the Vicioso court did not reach the issue of what employer actions were prohibited, and did not include this factor in its four-part test, the Vicioso opinion states in its description of § 2615(a)(1) that “[e]mployers are prohibited from denying or interfering with an employee’s rights guaranteed by the act.”23 Nowhere did the court state that plaintiffs must be denied FMLA benefits outright, and it is more faithful to the statutory language to include both interference and denial as prohibited actions.24

The second case the Santos court cited as the source for its five-part test is Spurlock v. NYNEX.25 The Spurlock court’s FMLA interference test uses the same first three steps as the Vicioso court, but then, in its fourth prong, states that “defendant engaged in some prohibited act as defined in 29 U.S.C. § 2615.”26 The court did not require an outright denial of benefits, but rather deferred to the broader language of the statute. The Spurlock court took its test almost word-for-word from a test applied in Blidy v. Examination Management Services, which likewise stated as its fourth and final prong only the broad requirement that the plaintiff show that the employer “engaged in some prohibited act,” citing § 2615 as the relevant authority for what constitutes prohibited acts.27 None of these cases narrow the FMLA’s language to require denial of benefits, but rather remain true to the expansive language of § 2615 as carefully constructed by Congress when enacting the FMLA.

This review of common law principles makes it clear that the Third Circuit reached its holding in Ross by misreading Santos and Spurlock. The Ross decision directly quotes the test from Johnson. Johnson, in turn, took the test from Lombardo v. Air Products and Chemicals, Inc., which took it from Weisman v. Buckingham Township, which took it from Parker v. Hahnemann University Hospital.28 Parker took this language from its origin point in Spurlock—which, as discussed above, does not require denial of benefits, instead deferring to the more expansive statutory language.29 Parker cites Belgrave v. City of New York alongside Spurlock as the authority from which it took this test—and Belgrave takes its test from Santos which, again, uses “deny” as a shorthand for forms of interference that may stop short of an actual denial of benefits.30 In other words, the common law FMLA interference test has been passed along from court to court like a game of telephone, which has spawned a consequential misinterpretation denying plaintiffs their right to obtain redress for valid claims brought under the FMLA.

Some courts have recognized that the common law test cannot require a literal reading of its fifth prong, and have rightly adjusted its language in their versions of the test. The Sixth Circuit, for example, rephrased the fifth step in the prima facie analysis to “denied [the plaintiff] FMLA benefits or interfered with FMLA rights.”31 Preventing FMLA interference in this more capacious way is necessary so that the FMLA can accomplish its purpose of putting a clear system into place “to balance the demands of the workplace with the needs of families [and] promote the stability and economic security of families.”32 Employer interference that leaves employees uncertain of their rights or causes them to face undue obstacles in accessing those rights undermines the balance and stability Congress intended to create by putting a clear, generally applicable benefits structure into place when establishing the FMLA.

There is no historical or textual justification for narrowing Congress’ “interfere, restrain, or deny” language to denial alone. As this Contribution demonstrates, the chain of cases cited as authority for this narrowing does not contain any underlying argument that would justify doing so, and the courts that originally introduced the test never intended nor applied any such narrowing. Courts should therefore follow Congress’s clear language—not their own abbreviated version of Congress’s command—and allow employees to proceed with claims against employers who have interfered with their access to FMLA benefits, even in ways that stop short of outright denial.

* Anders M. Greene-Crow is a J.D. Candidate (2025) at New York University School of Law. This Contribution is a commentary on the problem at the 2024 Robert F. Wagner Labor and Employment Moot Court Tournament, hosted by New York Law School. One of the questions presented was whether an employee who has not been denied FMLA benefits can make out an FMLA interference claim. This Contribution distills one side of the argument.

1. 29 U.S.C. § 2601(a)(3)-(4) (“Congress finds that . . . the lack of employment policies to accommodate working parents can force individuals to choose between job security and parenting; [and] there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.”).

2. 29 U.S.C. § 2615(a)(1).

3. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (explaining that the FMLA “provides no relief unless the employee has been prejudiced by the violation”); Zedov v. Mr. Bult’s Inc., 612 F. Supp. 3d 812, 818 (N.D. Ill. 2020) (finding that an employer’s statements that “a lot of guys’ wives are sick, but they still show up for work,” and “I thought I made myself clear,” constituted FMLA interference by causing plaintiff to use personal and sick days, delaying the start of his leave).

4. Downey v. Strain, 510 F.3d 534, 540 (5th Cir. 2007) (providing an employee misleading or contradictory information constitutes FMLA interference); Gordon v. U.S. Capitol Police, 778 F.3d 158, 163 (D.C. Cir. 2015) (finding employer stating FMLA requests made him “mad” and that he would “find a problem” with plaintiff’s request violated the FMLA, even though plaintiff was not denied leave); McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 6 (D.C. Cir. 2010) (finding employer violated FMLA by pressuring employee not to take leave); Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 810 (7th Cir. 2015) (finding that supervisor telling teacher “[Y]ou’ve missed a lot of school . . . is there anybody that can take care of your son?” constituted unlawful discouragement); Ziccarelli v. Dart, 35 F.4th 1079, 1084 (7th Cir. 2022) (finding employer interfered with FMLA rights by telling employee “Don’t take any more FMLA. If you do, you will be disciplined”).

5. Goelzer v. Sheboygan Cnty., 604 F.3d 987, 993 (7th Cir. 2010).

6. Ross v. Gilhuly, 755 F.3d 185, 192 (3d Cir. 2014) (“[F]or an interference claim to be viable, the plaintiff must show that the FMLA benefits were actually withheld.”).

7. Ziccarelli, 35 F.4th at 1084 (“The text of §2615(a)(1) makes clear that a violation does not require actual denial of FMLA benefits.”).

8. 29 U.S.C. § 2615(a)(1) (emphasis added).

9. Ziccarelli, 35 F.4th at 1085 (“The use of the disjunctive ‘or’ in § 2615(a)(1) signals that interference or restraint without denial is sufficient to violate the statute, and that requiring denial would turn “interfere with, restrain, or” into surplusage.”).

10. Holden v. Stratton, 198 U.S. 202, 213 (1905) (“[E]ffect must be given if possible to all parts of a statute.”).

11. 539 U.S. 90, 97 (2003).

12. 755 F.3d 185, 192 (3d Cir. 2014).

13. Ross, 755 F.3d at 189–90, 192 (3d Cir. 2014).

14. Id. at 192.

15. Ziccarelli, 35 F.4th at 1084.

16. Ross, 755 F.3d at 191 (quoting Johnson v. Cmty. College of Allegheny Cnty., 566 F. Supp. 2d 405, 446 (W.D. Pa. 2008)) (emphasis added).

17. No. 99 Civ. 1499 (BSJ), 1999 U.S. Dist. LEXIS 9036, at *7 (S.D.N.Y. June 11, 1999), aff’d 252 F.3d 175 (2d Cir. 2001).

18. Id. at *10.

19. Id. at *7.

20. Id. at *7–8.

21. Id.at *7.

22. No. 98 Civ. 2027 (RWS), 1998 U.S. Dist. LEXIS 9729, at *4 (S.D.N.Y. July 1, 1998).

23. Vicioso, 1998 U.S. Dist. LEXIS 9729, at *4 (emphasis added).

24. See Ziccarelli, supra note 9.

25. 949 F. Supp. 1022 (W.D.N.Y. 1996).

26. Id. at 1032.

27. Blidy v. Examination Mgmt. Servs., 96 C 3553, 1996 U.S. Dist. LEXIS 14539, at *7 (N.D. Ill. Oct. 2, 1996).

28. Johnson, 566 F. Supp. 2d at 446; Lombardo v. Air Prods. & Chems., Inc., No. 06–1120, 2006 U.S. Dist. LEXIS 46077, at *11 (E.D. Pa. July 7, 2006); Weisman v. Buckingham Twp., No. 04–4719, 2005 U.S. Dist. LEXIS 11696, at *11 (E.D. Pa. June 14, 2005); Parker v. Hahnemann Univ. Hosp., 234 F. Supp. 2d 478, 483–85 (D.N.J. 2002) (the shared language across these cases states “to present a claim under the FMLA, a plaintiff must show (1) [they are] an eligible employee under the FMLA, (2) defendant is an employer subject to the requirements of the FMLA, (3) [employee] was entitled to leave under the FMLA, (4) [they] gave notice to the defendant of [their] intention to take FMLA leave, and (5) the defendant denied [them] the benefits to which [they were] entitled under the FMLA”).

29. See Parker, 234 F. Supp. 2d at 483–84 (citing Spurlock, 949 F. Supp. at 1033); Belgrave v. City of New York, 95-CV-1507 (JG), 1999 U.S. Dist. LEXIS 13622 at *44 (E.D.N.Y. Aug. 31, 1999), aff’d 216 F.3d 1071 (2d Cir. 2000).

30. Id. at 484.

31. Harris v. Metro. Gov’t of Nashville & Davidson Cty., 594 F.3d 476, 482 (6th Cir. 2010) (emphasis added).

32. 29 U.S.C. § 2601(b)(1) (listing purposes of the FMLA).