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.