The United States Court of Appeals for the Seventh Circuit, in Ziccarelli vs. Dart, has ruled that an employer need not deny FMLA leave to an employee in order to interfere with his FMLA rights.
Law. The FMLA allows eligible employees to take protected leave for, among other things, medical reasons, the birth or adoption of a child, and the care of a spouse, child, or parent who has a serious health condition. The FMLA prohibits interfering with, restraining, denying or retaliating against an employee for the exercise of, or attempt to exercise, any FMLA right.
Accordingly, to demonstrate an FMLA interference violation, the employee must show that: (i) he was eligible for FMLA protections; (ii) the employee was covered by FMLA; (iii) he was entitled to leave under the FMLA; (iv) he provided sufficient notice of his intent to take leave; and (v) the employer interfered with, restrained, or denied FMLA benefits to which he was entitled. The employee must also show he was prejudiced by the unlawful actions of the employer.
Background. In Ziccarelli, the employee developed several serious health conditions for which he requested and received permission to take leave under the FMLA. Based on the advice of a doctor, he then decided to apply for permanent disability benefits. To do so, however, he first needed to exhaust all his earned sick leave. Accordingly, the employee told his employer that he needed to use up his FMLA leave so he could seek treatment. The employer’s representative responded to the employee’s request by saying, “you’ve taken serious amounts of FMLA…don’t take any more FMLA. If you do so, you will be disciplined.”
District Court. Based on the employer’s response, the employee filed a lawsuit in federal district court alleging FMLA interference by the employer. The district court proceeded to dismiss the case, agreeing with the employer that that the employee’s FMLA interference claim failed because he did not show an actual denial of FMLA benefits.
Seventh Circuit. In reviewing the matter, the Seventh Circuit noted that the FMLA makes clear that a “violation does not require actual denial of FMLA benefits. This understanding of the statute does not conflict with the relevant case law in this or other circuits. Any apparent contradictions prove illusory on closer inspection.”
The Seventh Circuit observed that if it adopted the lower court’s position, an employer that wanted to prevent FMLA use would have many options that would stop short of denying a claim, such as not providing basic FMLA information to an employee unaware of his rights, or orally discouraging FMLA use before the employee actually requested leave.
The Seventh Circuit stated that “[r]ights under the FMLA would be significantly diminished if it permitted employers to actively discourage employees from taking steps to access FMLA benefits or otherwise to interfere with or restrain such access.” The Seventh Circuit explained that “[f]or the [FMLA] to protect ‘the exercise or the attempt to exercise’ FMLA rights, it must be read so that an interference or restraint without actual denial is still a violation.” (Emphasis added.) Indeed, the Seventh Circuit pointed out that the Department of Labor regulations implementing the FMLA also support an interpretation that “[i]nterfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” (See 29 C.F.R. § 825.220(b).)
Based on the foregoing analyses, the Seventh Circuit reversed the lower court’s dismissal of the employee’s lawsuit but noted that the matter posed a genuine issue of material fact as to whether the employer’s representative had actually threatened the employee in the manner presented. The case was returned to the lower court to make this factual determination. During the trial, it would be sufficient if the employee presented evidence allowing a reasonable jury to conclude that the employer “discouraged” him from exercising his FMLA rights.
Employer Takeaway. Because not all U.S. Courts of Appeal have reached the same conclusion as the Seventh Circuit, employers should be especially careful when discussing FMLA rights with employees.