Earlier this month, the 7th Circuit reaffirmed its position that, “an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request.” Ziccarelli v. Dart, No. 19-3435 (2022).

Facts

Salvatore Ziccarelli worked for the Cook County Sheriff’s Office for 27 years. During his employment, Ziccarelli took FMLA leave ranging from 10-169 hours per year. In 2016, he discussed the need for more FMLA leave to enroll in a treatment program at the advice of his doctor. Ziccarelli was allegedly told, “don’t take any more FMLA,” and that he “will be disciplined” if he took any more leave. Based on this information, Ziccarelli did not take leave and opted instead to retire.

District Court Ruling

The district court granted the employer’s motion for summary judgment, finding that Ziccarelli’s claim of retaliation failed because he did not show that the employer actually denied him FMLA benefits. Ziccarelli filed an appeal to the 7th Circuit.

7th Circuit Appeal

In evaluating Ziccarelli’s appeal, the court turned to the language of the FMLA making it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right,” provided by the FMLA. 29 U.S.C. § 2615(a)(1) (emphasis added). Therefore, the court stated, “threatening to discipline an employee for seeking or using FMLA leave to which he is entitled clearly qualifies as interference with FMLA rights.” This ruling is consistent with at least five other circuits, including the 9th Circuit.

9th Circuit Case

In 2003, the 9th Circuit (which has jurisdiction over Hawaii) in Liu v. Amway Corp., 347 F.3d 1125, relied on the Department of Labor’s  regulations that interpret “interfering” to include “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave,” 29 C.F.R. § 825.220(b). In this case, the court stated that the employer’s failure to assess the employee’s entitlement to FMLA leave constituted a violation of the FMLA.

Takeaways

FMLA-covered employers’ obligation begin when they acquire knowledge that an employee leave may be for an FMLA-qualifying reason. The Ziccarelli case serves as a reminder that an employer may be in violation of the FMLA if it interferes with an employee’s attempt to exercise any right under it. Interference can include discouraging employees from requesting or using FMLA leave, or denying such requests or use either expressly or impliedly. Employers should ensure managers are trained to recognize the need for FMLA leave and ensure they do not interfere with an employee’s rights.

HEC members may view our FMLA resources, or contact their HR Consultant for further guidance on FMLA compliance.