What Counts as FMLA Harassment? Pressure, Attendance Points, and Retaliation by Supervisors

Jurisdiction note: This article provides general information for employees in New Jersey and Pennsylvania and is not legal advice. The federal FMLA applies in both states. New Jersey and Pennsylvania employees may also have separate rights under disability, family-leave, sick-leave, pregnancy, workers’ compensation, or other laws.

“FMLA harassment” usually means interference, retaliation, or both

The FMLA protects eligible employees from more than a formal denial of leave. The law also prohibits employers from interfering with, restraining, or denying the exercise of FMLA rights and from discriminating or retaliating against employees for using those rights.

The U.S. Department of Labor’s FMLA FAQ gives a direct example: an employer may not assess a negative attendance point for an absence protected by FMLA. The Department also explains that employers may not use FMLA leave as a negative factor in hiring, promotions, discipline, or other employment actions.

FMLA interference

Interference focuses on whether the employer prevented, discouraged, burdened, or denied the exercise of an FMLA right. Examples may include:

• telling an eligible employee not to request leave;
• refusing to provide required notices;
• counting protected leave under a no-fault attendance policy;
• requiring substantial work during leave;
• threatening consequences if the employee uses approved leave;
• manipulating hours to avoid FMLA eligibility; or
• refusing proper restoration when leave ends.

FMLA retaliation

Retaliation focuses on punishment because an employee requested leave, used leave, complained about an FMLA violation, or participated in an FMLA proceeding. Possible adverse actions include termination, demotion, reduced hours, a materially worse schedule, negative reviews, loss of opportunities, or discipline tied to protected absences.

Common forms of pressure that may raise FMLA concerns

Can your supervisor complain that you are “unreliable” because of FMLA?

A manager can discuss legitimate staffing needs, but protected FMLA absences generally should not become the basis for discipline or a negative employment decision.

Comments deserve closer review when they connect the leave to a consequence, such as:

• “If you keep using FMLA, you will not be considered for promotion.”
• “We need someone who can actually be here every day.”
• “You have used enough leave. Come back or we will replace you.”
• “Your attendance makes you ineligible for a raise,” when the attendance problem consists of protected leave.

Do not rely on memory alone. Record the exact words, speaker, date, location, witnesses, and what happened next.

Attendance points and no-fault policies

The Department of Labor expressly states that FMLA leave cannot be counted against employees under no-fault attendance policies. If a protected absence was assigned a point, occurrence, strike, or attendance deduction, preserve:

• the FMLA approval or designation;
• the attendance record;
• the attendance policy;
• the dates that generated points;
• any written warning or termination notice; and
• evidence showing whether HR later removed or retained the point.

An attendance point may matter even if it did not immediately cause termination. A point can become part of a later warning, promotion denial, bonus decision, suspension, or discharge.

Bonuses and performance goals are more nuanced

FMLA does not guarantee every bonus regardless of the employer’s neutral eligibility rules. The Department of Labor explains that a goal-based bonus may sometimes be denied if the employee did not achieve the goal because of FMLA leave, provided employees on equivalent non-FMLA leave are treated the same way.

For example, a production bonus tied to a specific hours-worked target may be treated differently from a bonus that is already earned or unrelated to attendance. The comparison with equivalent leave is critical.

Employees should save the written bonus plan, prior bonus calculations, leave records, and examples showing how coworkers on vacation, sick leave, jury duty, disability leave, or other absences were treated.

Can your employer require you to work while on FMLA?

Limited administrative contact is not necessarily unlawful. A brief question about a password, status, or transition issue may be different from requiring an employee to continue doing the job.

More concerning facts may include repeated demands to:

• attend meetings;
• respond to clients;
• prepare reports;
• meet production targets;
• complete normal daily work;
• remain on call; or
• use leave only while continuing to handle essential responsibilities.

Save the requests and your responses. Do not delete messages simply because they are inconvenient to either side.

What if the hostility comes from your supervisor instead of HR?

An employer can face FMLA problems based on supervisor conduct even when HR formally approved the leave. The question is whether the supervisor’s actions interfered with the leave or caused retaliation.

Document whether the supervisor:

• knew the leave was approved;
• complained about coverage or inconvenience;
• gave attendance points;
• changed assignments;
• began documenting performance problems;
• recommended discipline;
• blocked promotion or overtime; or
• participated in the termination decision.

For the broader proof framework, review Swartz Swidler’s guide to proving workplace retaliation.

What evidence helps prove FMLA interference or retaliation?

Compare the employer’s explanation with the records

If the employer says the discipline was unrelated to leave, ask:

• Did the problem exist before the FMLA request?
• Was it documented at the time?
• Were non-FMLA employees treated the same way?
• Did the explanation change?
• Were protected absences included in productivity or attendance calculations?
• Did a supervisor express hostility toward the leave?

How should you respond if the pressure is happening now?

1. Keep using the required FMLA call-in process. Protected leave can still be subject to lawful notice procedures.
2. Ask HR to correct attendance coding. Identify protected dates specifically.
3. Respond factually to discipline. State which absences were FMLA-protected and attach the relevant approval when appropriate.
4. Report supervisor pressure in writing. Use dates, quotations, and specific employment effects.
5. Preserve records lawfully. Do not take confidential files you are not entitled to possess.
6. Do not resign impulsively. Consider the effect on unemployment, damages, severance, and legal strategy.

Employees facing broader FMLA issues can review the firm’s FMLA representation page and the high-level guide to signs an employer may be violating FMLA rights.

FMLA deadlines and remedies

FMLA lawsuits generally use a two-year limitations period, potentially extended to three years for a willful violation. The period usually runs from the last alleged FMLA violation. Other related claims may use different deadlines.

Potential FMLA remedies can include lost wages and benefits, interest, an equal amount as liquidated damages unless the employer establishes the statutory good-faith defense, equitable relief such as reinstatement, and reasonable attorneys’ fees and costs. Emotional-distress and punitive damages are not ordinary FMLA remedies.