Relying on “chill theory,” a federal district court in Arkansas held recently that an employer who had granted the plaintiff her requested FMLA leave and had reinstated her when her doctor released her to return, nonetheless may have interfered with her FMLA rights when her supervisor called her weekly during the leave to ask when she was going to return to work. The plaintiff said she “felt pressured” by these calls. A month after plaintiff’s return to work, the employer terminated her for theft. In Terwilliger v. Howard Memorial Hospital, the court denied the employer’s motion for summary judgment on the FMLA interference claim, holding that a reasonable jury could conclude that the supervisor’s weekly calls “interfered with plaintiff’s exercise of her FMLA rights by discouraging or chilling her exercise of those rights.”
The court observed that “[p]laintiff had a right not to be discouraged from taking FMLA leave,” suggesting that the calls may have been discouraging, although nothing in the decision suggests plaintiff returned to work earlier than she should have as a result of the calls. Reconciling the employer’s right to communicate with an employee on FMLA leave with an employee’s right not to be discouraged by such communications could be tricky. When considering terminating an employee who is on or recently returned from an FMLA leave, an employer should consider the nature and extent of its communications with the employee to evaluate the FMLA interference claim. In Terwilliger, since the court had dismissed the plaintiff’s FMLA retaliation claim, the interference claim is the only issue proceeding to trial.