An Employer Can Violate The FMLA By Discouraging Use Of Leave

A recent decision from the Seventh Circuit Court of Appeals provides a good reminder that the Family and Medical Leave Act (FMLA) prohibits more than a denial of leave. The law also prohibits employers from interfering with an employee’s use of FMLA, which, according to the court in Ziccarelli v. Dart, can include a manager discouraging an employee from taking leave.

The employee in this case, Ziccarelli, had already used 304 hours of his 480 hours of FMLA by September. He wanted to use the remainder of his FMLA, as well as his sick leave and annual leave, to enroll in an eight-week treatment program for post-traumatic stress disorder. He alleged that a FMLA manager told him he had already taken “serious amounts of FMLA” and should not take any more or he would be disciplined. (The manager’s version of this conversation was vastly different.) Ziccarelli did not apply for FMLA leave and instead opted to retire.

The Seventh Circuit Court of Appeals, which covers Wisconsin, Illinois and Indiana, found that Ziccarelli’s employer may have interfered with his FMLA rights even though it did not deny his use of FMLA leave. Because the law also prohibits interference with an employee’s use of FMLA, an employer may violate the FMLA by discouraging the use of leave. The court decided that if a jury believed Ziccarelli’s version of his conversation with the FMLA manager, the manager’s statement could violate the FMLA’s interference provision.

This decision highlights the importance of training and documentation. All supervisors and managers need to understand the scope of employees’ rights under laws like the FMLA and be trained on how to talk to employees about leave. Moreover, they need to know how to best document their conversations so that if a dispute arises, the employer has reliable evidence to help prove it followed the law.

KZA attorneys favor a proactive approach to labor and employment issues, and our firm offers a host of training programs that can be tailored to meet your company’s needs. If you are interested in training or have a question about the court’s decision, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.