No. A requirement that employees vacate employer-provided housing during an FMLA leave would not violate the FMLA as long as the employer's policy treats employees on FMLA leave and on other, non-FMLA leave, the same. Employees on FMLA leave, however, have restoration rights—including the right to return to the employer-provided residence upon returning from FMLA leave.

Under the FMLA, the taking of FMLA leave cannot result in the loss of an employment benefit accrued before the date of that leave. Although FMLA regulations focus mainly on health benefits, the regulations also indicate that an employee's entitlement to non-health benefits while on FMLA leave "is to be determined by the employer's established policy for providing such benefits when the employee is on other forms of leave."

In this situation, the employee's right to continued lodging is determined by established employer policy. Because the employer would restore the employee to the apartment at the end of the FMLA leave, the employee, upon restoration, would not be denied any employment benefits accrued before the date of the FMLA leave.

Such a policy must be established and uniformly applied to non-FMLA absences in order to be available for FMLA absences. Requiring an employee on FMLA leave to vacate employer-provided housing is impermissible discrimination under the FMLA if employees on non-FMLA leave are not required to vacate the housing.