The Seventh Circuit Court of Appeals recently issued an opinion clarifying when an employer may be held liable for interfering with its employees’ rights to take leave under the Family and Medical Leave Act of 1993 (“FMLA”). This opinion is a reminder of the importance of employers providing adequate and accurate information about the FMLA to their employees and making the process for obtaining FMLA leave as straightforward as possible.
In Ziccarelli v. Dart, No. 19-3435, 2022 U.S. App. LEXIS 15032 (7th Cir. June 1, 2022), the Court held that an employer is not required to deny FMLA benefits to be in violation of the statute, because the “interference” or “restraint” of an employee’s use of FMLA benefits alone is actionable. A remedy is available to an aggrieved employee under 29 U.S.C. § 2617 if the employee can show prejudice from this interference or restraint.
Ziccarelli was a Cook County Sheriff’s Office employee for 27 years and periodically took FMLA leave over the course of his employment due to his various serious health conditions. In September 2016, Ziccarelli discussed the possibility of taking additional FMLA leave with the Sheriff’s Office’s FMLA manager, who was authorized to approve or deny FMLA benefits. At that time, he still had FMLA leave for the calendar year remaining. While the parties’ accounts of what was said during that conversation diverged greatly, Ziccarelli’s account of the conversation was that the FMLA manager told him that he would be disciplined if he took any more FMLA leave. After this conversation, Ziccarelli opted to retire from the Sheriff’s Office instead of taking FMLA or sick leave.
Ziccarelli then brought various claims under the FMLA against the Sheriff’s Office. The District Court granted summary judgment as to all of Ziccarelli’s claims, but the Seventh Circuit reversed summary judgment on his FMLA interference claim. In so holding, the Seventh Circuit recited the elements necessary to establish an actionable FMLA interference claim: (i) the employee was eligible for FMLA protections; (ii) the employer was covered by the FMLA; (iii) the employee was entitled to leave under the FMLA; (iv) the employee provided sufficient notice of intent to take FMLA leave, and; (v) the employer denied or interfered with FMLA benefits to which he was entitled.
At issue on appeal was the proper interpretation of the fifth element. The Sheriff’s Office argued that an actual denial of FMLA benefits is required for a claim to be actionable. Ziccarelli argued that “interference” is to be read more broadly than just a denial of benefits. Acknowledging that its precedent on the issue may have been confusing, the Court looked to the statutory text and context of the FMLA. Section § 2615(a)(1) of the FMLA sets forth that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” any employee’s rights under the FMLA. Because “interfere with, restrain, or deny” are listed in the disjunctive, and because the FMLA also protects an employee’s “attempt” to exercise their rights under the FMLA, the Court held that the statute does not require an actual denial of benefits for an employee to bring an actionable claim. Moreover, the Court held that permitting employers’ conduct that prejudices employees’ FMLA rights would undermine the principles the FMLA seeks to protect. Finally, the Court also looked to Department of Labor regulations implementing the FMLA and noted that they were persuasive evidence that the best reading of the FMLA is that an actual denial of benefits is not required to establish an actionable claim.
Under this interpretation of interference, the Court noted that an employer can potentially violate the FMLA without denying a request for leave by, for example, implementing a burdensome approval process, not providing FMLA information, or discouraging employees from using FMLA leave. Moreover, an employee’s request for medical leave information can constitute an “attempt to exercise” FMLA rights even if the employee does not expressly invoke the FMLA. Taking Ziccarelli’s testimony at face value, the threat that he would be disciplined if he took any more FMLA leave was actionable, and questions of fact remained for the District Court to resolve as to whether he suffered prejudice from this alleged threat.
This decision reiterates the importance of employers having clear communications with employees who request a leave. If there is verbal communication, as there was in Ziccarelli’s situation, then perhaps document it with an e-mail.
If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.