Recently, the U.S. Court of Appeals for the 7th Circuit (which covers Illinois, Indiana, and Wisconsin) wrestled
with the question of whether an employer can violate the Family and Medical Leave Act (FMLA) by discouraging an employee from exercising rights under the Act without actually denying an FMLA leave request. In an important decision, the court reversed the lower court’s ruling in favor of the employer and clarified that “interfering, restraining, and denying are distinct ways of violating the FMLA.”
Oh Give Me a Home
In 1989, Salvatore Ziccarelli began working for the Cook County, Illinois, sheriff’s office—where he would be employed for 27 years. Between 2007 and early 2016, he requested and received between 10 and 169 hours of FMLA leave per year because of several serious health conditions.
In July 2016, Ziccarelli sought treatment from a psychiatrist for his work-related post-traumatic stress disorder (PTSD). By September of that year, he had used 304 hours of his allowable 480 hours of FMLA leave for 2016. At his doctor’s advice, he decided to apply for permanent disability benefits; but to do so he needed to exhaust all of his earned sick leave.
In a fateful conversation in September, Ziccarelli called Wyola Shinnawi, the sheriff’s office FMLA manager, to discuss the possibility of using a combination of FMLA leave, sick leave, and annual leave so he could attend an eight-week treatment program to address his PTSD. His and Shinnawi’s accounts of that call are hotly contested.
Where Seldom Is Heard a Discouraging Word?
Ziccarelli says he told Shinnawi he needed to use more FMLA leave so he could seek treatment. He claims she responded by saying “you’ve taken serious amounts of FMLA . . . don’t take any more FMLA. If you do, you will be disciplined.” In his account, she never explained what discipline might be forthcoming, but he feared he would be fired.
For her part, Shinnawi testified that Ziccarelli requested several months of leave, to which she replied that he didn’t have enough FMLA hours left. She denied making any threats but confirmed that she told him if he used FMLA he didn’t have, it would be coded unauthorized.
Shortly after the call with Shinnawi, Ziccarelli retired from the department. He didn’t take leave and wasn’t disciplined before he departed. He eventually filed suit in federal court in Chicago, asserting a variety of claims under the FMLA, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964. The district court entered judgment in favor of the sheriff’s office on all claims. He appealed only on his FMLA claims.
Home on the Range
Ziccarelli posited two types of FMLA claims: (1) FMLA interference and (2) that the sheriff’s office constructively discharged him in retaliation for calling Shinnawi to discuss using more FMLA leave. The appellate court had little trouble affirming dismissal of the retaliation claim, so this article focuses only on the FMLA interference claim.
The FMLA provides that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the Act. Previous 7th Circuit cases have identified five elements for an FMLA interference claim. The first four elements (none of which were at issue here) required Ziccarelli to show:
- He was eligible for FMLA protections;
- The employer was covered by the FMLA;
- He was entitled to FMLA leave; and
- He provided sufficient notice of intent to take FMLA leave.
For the fifth element, the court acknowledged that previous 7th Circuit “opinions have used varying language that has led to some confusion.” While some decisions said the employee must show the employer denied him FMLA benefits to which he was entitled, others used verbiage requiring the employee to show his employer “denied or interfered with” such FMLA benefits.
In this case, the 7th Circuit panel hoped its “opinion will help clarify that an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request.”
Skies Are Not Cloudy All Day for Ziccarelli
The court based its reasoning on the statute’s text and buttressed its reading of the statute by referring to Department of Labor (DOL) regulations. As noted above, the statute itself provides that an employer may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the FMLA.
The court found that the use of the disjunctive “or” “signals that interference or restraint without denial is sufficient to violate” the law. To illustrate, the 7th Circuit hypothesized an employer that implemented a burdensome FMLA approval process, or that discouraged employees from requesting FMLA leave, could interfere with and restrain access to protected leave without actually denying many requests.
Further, the statute also protects the “attempt to exercise” FMLA rights. This too indicates that employers may violate the FMLA without actually denying an employee’s request for leave. Moreover, the court noted that employees’ FMLA rights would be “significantly diminished” if employers were permitted to actively discourage them from taking steps to access FMLA benefits.
The DOL regulations also support the conclusion that discouraging FMLA use may run afoul of the law. The regulations explicitly include “discouraging an employee from using [FMLA] leave” as a violation. The Act vests the DOL with broad authority to issue regulations implementing the FMLA, and the regulation is “further persuasive evidence” that actual denial of leave isn’t required.
Based on the 7th Circuit’s clarification of the law and giving Ziccarelli the benefit of conflicts in the evidence (which is required at this stage of proceedings), he had enough evidence to proceed with his case based on his testimony that Shinnawi discouraged him from taking leave, despite the fact he had over one month of FMLA leave available. He will now have a chance to prove his FMLA interference claim at trial. Ziccarelli v. Dart, No. 19-3435 (7th Cir., June 1, 2022).
Some Encouraging Words
Although employers may not be pleased with the result, this case is an important milestone and clarifies that employers may run afoul of the FMLA merely by discouraging an FMLA-eligible employee from taking leave. Here, the employer’s FMLA manager allegedly told Ziccarelli: “don’t take any more FMLA. If you do you will be disciplined.” His disputed account of those discouraging words may lead to a federal jury trial. You should redouble your efforts to train your managers and supervisors on employee rights and employer obligations under the FMLA, including that company representatives must never discourage FMLA-eligible employees from exercising their leave rights.
This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.