PELRAS Update | August 2022 – Federal Court Reminds Employers that “Discouraging” the Use of FMLA Leave is Impermissible

A recent decision from the Seventh Circuit reiterates that an “actual denial” of an FMLA leave request is not necessary to find an FMLA violation

Jonathan F. Whalen, Esq., Campbell Durrant, P.C. | August 2022

The Family and Medical Leave Act permits employees of FMLA-covered employers to take up to twelve (12) weeks per year of unpaid, job-protected leave for various reasons, usually when an employee or a family member experiences a “serious health condition.” The FMLA creates firm statutory rights, and thus, it is a truism that if an employee is eligible for FMLA leave and works for an FMLA-covered employer, that employer violates the FMLA if it denies such leave to an employee who is otherwise entitled to take it. Some employers, however, may be unaware that other conduct—conduct which might fall short of an outright “denial” and instead constitute mere “discouragement” of FMLA leave—can also violate the FMLA.

On June 1, 2022, the Seventh Circuit Court of Appeals issued its decision in Ziccarelli v. Dart, and reminded employers that the statute “does not require an actual denial of FMLA benefits” for violations to be found. In that case, the employee approached his employer to inquire about using FMLA leave in conjunction with sick leave and other paid-time off. The employer responded by pointing out the significant amount of FMLA leave the employee had taken over the course of the year, and warned him that discipline would result if he used any more. This warning was enough for the Seventh Circuit to deny the employer’s motion for summary judgment, and to rule that if the employee’s claims were true, he had alleged a violation of the FMLA.

It might seem obvious that threatening an employee with discipline for properly using his/her available FMLA leave would be, at the least, inadvisable. Nevertheless, as the Seventh Circuit noted, a wide range of employer conduct could be considered unlawful “discouragement” of FMLA-protected rights. Some examples include implementing “burdensome approval processes” that operate to “hamper” access to FMLA leave, failing to provide “basic FMLA information to an employee unaware of his rights,” or engaging in any other conduct that, while not constituting an outright “denial” of FMLA leave, nonetheless serves to “obstruct, impede, hinder” or “restrict” access to such leave.

This is significant, because employees do not need, when they request or inquire about “medical leave” options, to specifically invoke the FMLA. In such situations, it is the employer’s responsibility to adequately inform employees of their options under the FMLA and to refrain from obstructing, in any manner, an employee’s access to FMLA benefits, even where employees are unaware of such benefits or do not specifically invoke them for whatever reason. Thus, as the Seventh Circuit made clear, where an employee meets with his/her employer and informs it of some general need for medical leave, the employer violates the FMLA if it neglects to explain the availability of FMLA leave, makes the process for obtaining such leave burdensome, or otherwise fails to adequately facilitate the employee’s access to FMLA leave—even if the employer never explicitly “denies” FMLA leave to the employee.

It should be noted that an employer is only covered by the FMLA if, at the time of the employee’s leave request, it employs fifty (50) or more employees. Thus, some public employers may not be required to provide FMLA leave. Nonetheless, particularly in the age of COVID-19, where employees can be entitled to use FMLA leave when they or a spouse, parent or child are “incapacitated” with COVID-19, or when they begin to exhibit signs of so-called “long COVID,” covered employers must be aware of what conduct can potentially result in an FMLA violation. It is simply not necessary for an employer to actually “deny” the leave request, nor is it necessary for the employee to request FMLA leave specifically. Actions taken by employers which serve to, in any way, “discourage” or “hinder” the exercise of FMLA-protected rights can and will result in liability. As such, employers should ensure that their FMLA policies are up to date, that their approval processes are as streamlined as possible, and that employees are made aware of their rights under the FMLA even if they do not specifically request FMLA leave.