August 12, 2022

Under FMLA, Discouragement Can Be Denial

A key aspect of the Family Medical Leave Act (FMLA) is its mandate that employers may not “interfere with, restrain, or deny the exercise of or the attempt to exercise, any rights” under the Act. A recent Seventh Circuit decision[i] highlights the employer’s duty to provide leave without interference, no matter how that interference may manifest itself. The decision further illustrates how an employer can violate FMLA rights without actually denying an FMLA leave request.

The employer (Cook County Illinois Sheriff’s Office) found itself in hot water when a supervisor allegedly discouraged the employee from taking protected leave. Specifically, the plaintiff, Salvatore Ziccarelli, a 27-year employee, called his supervisor to request FMLA leave to treat a serious medical condition. Ziccarelli alleged his supervisor discouraged him from taking FMLA,  telling the employee he had already taken “serious amounts of FMLA” and “don’t take any more.” Fearing he would be fired for requesting additional leave, Ziccarelli retired shortly after the conversation.

The Court emphasized that “an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without denying an FMLA leave request.” In other words, mere discouragement can constitute unlawful FMLA interference.

Training is critical when it comes to leave-related issues. Supervisors and managers should be trained to identify red flag behaviors (e.g., sudden attendance or performance-related issues) and report them up the organizational structure to whomever is responsible for making leave decisions. Human resources or leave personnel should also be trained and encouraged to promptly respond to any leave-related situation by providing the employee with all necessary notifications.

Find FMLA-specific resources by visiting the EEOC’s FMLA resources page.  

[i] Ziccarelli v. Thomas J. Date, et al.