Discouraging FMLA Leave Can Be Interference

After 37 years of service, during which he periodically took FMLA leave, Zach contacted Sheila, the company leave administrator, to talk again about taking more leave. That particular year, 2016, he was being treated for PTSD and had used 304 of his 480 hours of FMLA leave by September.

Sheila responded to Zach’s request by indicating that he’d “…taken serious amounts of FMLA…don’t take any more FMLA. If you do so you will be disciplined.” Sheila did not explain what discipline would be involved, but Zach inferred that he would be fired. Instead, he retired. He did not take leave and he was not disciplined, but he did sue.

Zach claimed that the employer interfered with his FMLA rights because he was discouraged from taking FMLA leave to which he was entitled, and that he was retaliated against because he was constructively discharged.

The employer argued that it never denied Zach any FMLA leave, so it did not violate the FMLA.

In allowing the case to proceed to trial, the court interpreted the law [at §2615(a)(1)] that a violation does not require actual denial of FMLA benefits. The court indicated that it is unlawful for a covered employer to “interfere with, restrain, or deny” an eligible employee’s exercise or attempt to exercise FMLA rights. Employers need not actually deny FMLA rights to meet the law’s provisions.

The FMLA regulations are fairly clear that employers are prohibited from interfering with an employee’s FMLA rights, by not only refusing to authorize FMLA leave, but by discouraging an employee from using the leave [29 CFR 825.220].

The court pointed out that the law protects “the attempt to exercise” FMLA rights, which would make little sense if actual denial were required. If, for example, an employer has a burdensome approval process or discourages employees from requesting FMLA leave, the employer could interfere with and restrain access without denying many requests, because few requests requiring a formal decision would ever be made. Not providing the required FMLA information, or verbally discouraging FMLA use before employees actually requested leave could also be interference. Threatening to discipline an employee for seeking or using FMLA leave to which he is entitled clearly qualifies as interference with FMLA rights.

Therefore, friends, remember that you can risk an interference claim if you discourage or restrain FMLA rights without explicitly denying a leave request.

Ziccarelli v. Thomas J. Dart, et al., 7^th Circuit Court of Appeals, No. 19-3435, June 1, 2022.

Key to remember:  This case shows that threatening discipline for taking FMLA leave, without even applying the discipline can be enough to get an employer in trouble.