Seventh Circuit Reminds Employers: Don’t Discourage FMLA Leave
June 22, 2022
On June 1, 2022, the US Court of Appeals for the Seventh Circuit held in Zicarrelli v. Dart et al. that an employee’s FMLA rights may be violated without an actual denial of leave — simply interfering with an employee’s attempt to exercise those rights can violate the law.
Plaintiff Salvatore Zicarrelli worked for the Cook County Sheriff’s Office for over 27 years. During that time, he periodically took FMLA leave. In September 2016, he called the Sheriff’s Office FMLA manager to discuss taking more FMLA leave. According to Mr. Zicarrelli, when he asked to take FMLA leave, the FMLA manager responded by saying “don’t take any more FMLA. If you do so, you will be disciplined.” Though the contents of this conversation are hotly disputed, Mr. Zicarrelli retired from the Sheriff’s Office soon thereafter, a decision that he claims was based on the conversation.
Mr. Zicarrelli then sued his former employer, alleging violations of FMLA and discrimination under the ADEA, the ADA, and Title VII of the Civil Rights Act. The lower district court ruled in favor of the Sheriff’s Office on all claims. Specifically, the district court denied the FMLA interference claim because there was no denial of FMLA benefits. Mr. Zicarrelli appealed to the Seventh Circuit, but only as to his FMLA claims.
The Seventh Circuit ruled that threatening to discipline an employee for seeking FMLA leave to which the employee is entitled clearly qualifies as an unlawful interference with FMLA rights. In reaching this ruling, the Court found no ambiguity in the statute or regulations nor any conflicting interpretations among its sister circuit courts. First, the Court parsed the relevant section of the statute, which makes it unlawful for a covered employer to “interfere with, restrain, or deny” an eligible employee’s attempt to exercise FMLA rights. The Court zeroed in on the disjunctive phrasing (i.e., “or” not “and”), which signified that interfere with can stand alone as unlawful without an actual denial of FMLA leave. Second, the inclusion of “attempt to exercise” within the Act’s description of protected rights suggests that actual denial is not necessary. Third, the Court found that interpreting FMLA to allow employers to actively discourage the use of FMLA rights if no unlawful denial occurs would significantly diminish the rights granted. While FMLA was designed to accommodate employer’s legitimate interests, the Court found no legitimate interest in impeding access to FMLA benefits through intimidation, deception or concealment. Finally, the Court looked to DOL regulations, which state that interfering with an employee’s exercise of FMLA rights includes discouraging an employee from using such leave.
Having found Mr. Zicarrelli’s FMLA interference claim legally viable, the Seventh Circuit sent the case back down to the lower court for a jury to decide whether to believe Mr. Zicarrelli’s or the FMLA manager’s version of the leave conversation in dispute.
The Zicarrelli case serves as a good reminder to employers to not discourage eligible employees from taking FMLA leave. Doing so is a clear violation of FMLA-protected rights. Supervisors, managers or other agents designated by employers to handle FMLA requests must be trained to not interfere with an employee’s right to seek FMLA leave. Beginning with an employee’s initial inquiry, communications regarding leave should be documented in a way that prevents any misunderstanding between employer and employee. Similarly, written leave policies must be carefully drafted to not include any terms that could be interpreted as discouragement or limitation on eligible FMLA leave.
Zicarrelli v. Dart et al. »