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Discouraging FMLA Leave Violates the Family and Medical Leave Act


    Client Alerts
  • June 10, 2022

The Family and Medical Leave Act (FMLA) requires employers with 50 or more employees to provide eligible employees with 12 weeks of unpaid, job-protected leave in a 12-month period. There are very specific eligibility and notice requirements for employers to consider, but the Seventh Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin) has recently clarified that discouraging an employee from exercising rights under the FMLA without actually denying a leave request could violate the FMLA.

On June 1, 2022, the Seventh Circuit issued a 25-page opinion holding that a worker did not need to be denied FMLA leave to have his FMLA rights violated. In Ziccarelli v. Dart, the plaintiff was a corrections officer in Cook County, Illinois, and he began working in 1989. During his career, he developed several serious health conditions, and from 2007 through early-2016, he used between 10 and 169 hours of FMLA leave per year. The plaintiff approached his supervisor in 2016 to use his remaining FMLA and any remaining sick leave to attend an eight-week PTSD program.

The plaintiff’s supervisor told the plaintiff that he would be disciplined if he took any more FMLA leave. The plaintiff resigned based on his fear that he would be fired.

Though the Seventh Circuit only covers three states in the United States, this case appropriately illustrates the FMLA’s plain language. The FMLA statutory language broadly prohibits employers from interfering with or restraining the exercise of FMLA rights, and it also prohibits discrimination and retaliation against employees for exercising their FMLA rights. This means that employers need to carefully consider when an employee brings forward a medical condition or concern, even if the employee does not outright mention the FMLA or taking leave, and it is the employer’s responsibility to determine if the employee is eligible and then provide that employee with all FMLA leave that they may be entitled to without any interference or discouragement.

If you have any questions about this case or FMLA compliance, please contact your Parker Poe Employment & Benefits attorney.