(a) The FMLA prohibits interference with an employee's rights under
the law, and with legal proceedings or inquiries relating to an
employee's rights. More specifically, the law contains the following
employee protections:
(1) An employer is prohibited from interfering with, restraining, or
denying the exercise of (or attempts to exercise) any rights provided by
the Act.
(2) An employer is prohibited from discharging or in any other way
discriminating against any person (whether or not an employee) for
opposing or complaining about any unlawful practice under the Act.
(3) All persons (whether or not employers) are prohibited from
discharging or in any other way discriminating against any person
(whether or not an employee) because that person has--
(i) Filed any charge, or has instituted (or caused to be instituted)
any proceeding under or related to this Act;
(ii) Given, or is about to give, any information in connection with
an inquiry or proceeding relating to a right under this Act;
(iii) Testified, or is about to testify, in any inquiry or
proceeding relating to a right under this Act.
(b) Any violations of the Act or of these regulations constitute
interfering with, restraining, or denying the exercise of rights
provided by the Act. ``Interfering with'' the exercise of an employee's
rights would include, for example, not only refusing to authorize FMLA
leave, but discouraging an employee from using such leave. It would also
include manipulation by a covered employer to avoid responsibilities
under FMLA, for example:
(1) transferring employees from one worksite to another for the
purpose of reducing worksites, or to keep worksites, below the 50-
employee threshold for employee eligibility under the Act;
(2) changing the essential functions of the job in order to preclude
the taking of leave;
(3) reducing hours available to work in order to avoid employee
eligibility.
(c) An employer is prohibited from discriminating against employees
or prospective employees who have used FMLA leave. For example, if an
employee on leave without pay would otherwise be entitled to full
benefits (other than health benefits), the same benefits would be
required to be provided to an employee on unpaid FMLA leave. By the same
token, employers cannot use the taking of FMLA leave as a negative
factor in employment actions, such as hiring, promotions or disciplinary
actions; nor can FMLA leave be counted under ``no fault'' attendance
policies.
(d) Employees cannot waive, nor may employers induce employees to
waive, their rights under FMLA. For example, employees (or their
collective bargaining representatives) cannot ``trade off'' the right to
take FMLA leave against some other benefit offered by the employer. This
does not prevent an employee's voluntary and uncoerced acceptance (not
as a condition of employment) of a ``light duty'' assignment
while recovering from a serious health condition (see Sec. 825.702(d)).
In such a circumstance the employee's right to restoration to the same
or an equivalent position is available until 12 weeks have passed within
the 12-month period, including all FMLA leave taken and the period of
``light duty.''
(e) Individuals, and not merely employees, are protected from
retaliation for opposing (e.g., file a complaint about) any practice
which is unlawful under the Act. They are similarly protected if they
oppose any practice which they reasonably believe to be a violation of
the Act or regulations.
