Dive Brief:

• An employer may violate the Family and Medical Leave Act if it discourages an employee from requesting FMLA leave even if it doesn’t actually deny the request, the 7th U.S. Circuit Court of Appeals held (Ziccarelli v. Dart, No. 19-3435 June 1, 2022)).
• In September 2016, after being diagnosed with work-related PTSD, a corrections officer for the Cook County, Illinois, sheriff’s department called the agency’s FMLA manager to discuss taking leave, according to court documents. His doctor recommended that he attend an eight-week treatment program. But because he didn’t have eight weeks of available FMLA leave left for 2016, he planned to use a combination of FMLA leave, sick leave and annual leave to attend the program. The officer alleged the leave manager said he would be disciplined if he took more FMLA; the manager said she told him he would be disciplined if he took more leave than he had available.
• The officer retired and sued, alleging FMLA interference and constructive discharge. A federal district court ruled against him on both claims but on appeal, the 7th Circuit revived his interference claim. It held that a fact-finder would have to decide which of the starkly different accounts of the conversation was credible.

Dive Insight:

The FMLA provides eligible employees with up to 12 workweeks of unpaid leave a year, according to the U.S. Department of Labor. The law also prohibits employers from interfering with, restraining or denying “the exercise of or attempt to exercise” FMLA rights. This language makes clear that by interfering with an employee’s attempt to exercise FMLA rights, an employer violates the law even if it doesn’t actually deny FMLA benefits, the 7th Circuit explained.

For example, an employer would be interfering with FMLA rights if it threatened to discipline an employee for seeking or for using FMLA leave to which the employee was entitled, the court said. Employers would also be interfering with FMLA rights by implementing a burdensome approval process, the panel added.

Still, even though an employer can violate the FMLA without actually denying FMLA leave, employees have to show they were prejudiced by an employer’s actions to be entitled to a remedy, the Ziccarelli court said. The court pointed to a previous ruling involving a teacher who took time off to care for a son with sickle cell anemia. The teacher never applied for FMLA leave but claimed this was because the principal threatened and discouraged him from doing so. The 7th Circuit said a jury could find he was injured, or prejudiced, by the school’s actions because evidence showed he chose not to take additional leave based on the principal’s threats.

In the officer’s case, there was evidence the FMLA manager’s alleged statements prejudiced him by affecting his decision to use his remaining FMLA leave for treatment, the panel said. After their conversation, the officer never submitted an FMLA request. He claimed this was because he was afraid of what would happen after the manager allegedly threatened him with discipline for taking more FMLA leave.

But the officer’s claim he was forced to retire, or constructively discharged, likely failed to show prejudice, the 7th Circuit said. The officer knew he had a combination of FMLA leave, sick leave and annual leave left, and the FMLA manager said nothing to address the other leaves. “We do not see how an employee in plaintiff’s position could reasonably just give up and walk away from his job, benefits and treatment plan entirely based on one conversation in which, under his version of the facts, the employer’s representation was simply wrong,” the panel observed. 

Nor was officer’s claim of constructive discharge evidence of retaliation, the 7th Circuit held. Constructive discharge is a form of retaliation when the employer makes working conditions “objectively unbearable,” such as when its actions communicate to employees they will be immediately and unavoidably terminated. That wasn’t the case here, the panel said. To the contrary, a reasonable person in the officer’s position would have thought they had several options short of immediately retiring, such as combining the available leaves to avoid being fired or undergoing a shortened treatment program. The officer had the burden to show why he had to quit immediately, and he failed to do so, it concluded.

The ruling serves as a warning about communication with employees seeking FMLA leave, Foley & Lardner attorney Carmen Decot wrote in a blog post for the law firm. To limit disputes about what was communicated, employers should document such conversations, Decot suggested.