by Employers know that they may have liability if they deny an eligible employee the ability to use job-protected leave under the Family and Medical Leave Act (FMLA) or discriminate against an employee for using FMLA leave. What employers may not realize is that they can have liability for violation of the FMLA if they have not denied leave, but have taken actions or communicated during the leave process in a manner that could be considered to be interfering with the employee’s lawful request for leave.
The 7th Circuit Court of Appeals recently issued an opinion (Ziccarelli v. Dart, June 1, 2022) stating that an employer may be liable for ‘interference’ or ‘restraint’ of an employee’s use of FMLA benefits based on statements made by management during the process of requesting leave. The employee in the case was an employee of the Cook County sheriff’s office. He had used FMLA leave several times over the years of his employment. In the fall of 2016, he made a request for FMLA leave for a serious health condition. He alleged that during the request process, the manager acknowledged that the employee had not used all of his annual allotment of FMLA leave but told him he would be disciplined if he took more leave that year. Instead of continuing the application process, the employee retired from the sheriff’s office and sued his employer for, among other things, interference in the way his FMLA request was handled. The disputed claims went to the federal district court and then to the federal appeals court.
The appeals court stated that to prove his case, the employee needed to show that the employer had denied or interfered with FMLA benefits. The employer argued that since it had not denied benefits, the employee’s claim failed. The appeals court disagreed, stating that the law protects an employee’s attempt to exercise their rights under the FMLA. A denial of benefits is not required to show a basis for an interference claim.
Among the employer actions short of leave denial that the court referenced as potential violations of the FMLA were:
- Implementing a complicated or burdensome FMLA approval process;
- Not providing employees with information on FMLA rights and application process steps; and
- Making statements or taking actions during the process that discouraged employees from seeking leave under the FMLA.
The appeals court sent the case back to the district court to resolve the factual dispute regarding whether the alleged threat occurred.
The case is a good reminder to employers to assure that managers and others are trained in how to respond to FMLA requests. Employer representatives should not discourage employees from following FMLA application processes nor make premature judgments on whether the employee will have a leave request approved or denied. Negative side comments or complaints about how the employee’s leave could adversely affect employer operations could lead to employer liability even if the leave is eventually granted. Representatives should provide information and allow the process to be followed. The leave request approval or denial should be done based on policy and FMLA requirements.
