In Ziccarelli v. Dart, 35 F. 4th 1079 (7th Cir. 2022), the Court of Appeals held that employers may violate the Family and Medical Leave Act (“FMLA”) by simply discouraging employees from exercising their rights under the FMLA without actually denying a leave request. On October 12, 2022, the U.S. Supreme Court declined to review the decision leaving the 7th Circuit ruling intact.
The Ziccarelli case involved FMLA claims brought by a corrections officer who had developed several serious health conditions over his long career with the Cook County Sheriff’s Office. Due to these conditions, the employee had taken intermittent FMLA leave. In 2016, the employee began treatment for post-traumatic stress disorder and, by September, had used 304 hours of the 480 hours of leave he was allowed.
The employee contacted the FMLA manager and inquired about using a combination of FMLA leave, sick leave and annual leave to complete an eight-week treatment program for PTSD. According to the employee, the manager told him, “You’ve taken serious amounts of FMLA . . . don’t take any more FMLA. If you do so, you will be disciplined.” The manager disputed making this statement. Shortly after, the employee retired and then filed a federal lawsuit.
The District Court granted summary judgment in favor of the employer and dismissed all of the employee’s claims. The employee pursued an appeal to the 7th Circuit, taking up only his FMLA-related claims for interference and retaliation. While the Court of Appeals dismissed the retaliation claim, it reversed and remanded the employee’s claim for FMLA interference. The Court of Appeals held that an employer is not required to deny FMLA benefits to be in violation of the statute because the “interference” or “restraint” of an employee’s use of FMLA benefits alone is actionable. However, a remedy is only available to the employee under the FMLA statute if the employee can show prejudice resulting from the violation.
The Court of Appeals gave specific examples of how an employer might interfere with employees’ rights to FMLA leave without expressly denying leave requests including 1) implementing a burdensome approval process, 2) not providing basic FMLA information to an employee otherwise unaware of his or her rights, 3) orally discouraging FMLA use before a formal request is made and 4) threatening discipline as a consequence of making a request for FMLA leave.
The takeaway from this decision for employers is the importance of ensuring that managers are trained on the key elements of the FMLA and how to properly handle FMLA leave requests.
Darcy L. Proctor is a partner in Tressler’s Local Government Practice Group. Darcy concentrates her practice in the defense of local governments in all aspects of tort, civil rights liability and employment litigation. She also defends private sector employers across a variety of employment law issues. A seasoned litigator, Darcy has taken dozens of cases to trial in both state and federal court. Clients trust Darcy to provide them with the best defense possible in court based upon her proven record of successful results. She also counsels her clients with training seminars, educating on best practices and loss prevention strategies to mitigate liability.