Discouraging the Use of FMLA is a Violation of the Law


“Denial of [Family and Medical Leave Act] benefits is not required to demonstrate an FMLA interference violation,” stated the U.S. Court of Appeals for the Seventh Circuit in a recent case.

In Ziccarelli v. Dart, the employee sought to use FMLA leave for treatment for his PTSD. According to him, the employer’s FMLA manager told him he had already taken “serious amounts of FMLA” and threatened him with discipline if he took any additional FMLA. He subsequently sued for interference with his FMLA rights.

The FMLA prohibits employers from interfering with, restraining, or denying the exercise of FMLA rights, among other things. Acknowledging that its prior decisions as well as that of some sister Circuits suggest that an actual denial of benefits is required to constitute interference with an employee’s FMLA rights, the Seventh Circuit has now clarified that discouraging an employee from taking leave also violates the law. This position is supported by the Department of Labor’s FMLA regulations, which specifically provide that, “Interfering with the exercise of an employee’s rights would include, for example, not only refusing to authorize FMLA leave but discouraging an employee from using such leave.” (Court’s emphasis).

Employers should be cautious in responding to employees’ requests for FMLA leave. Suggesting that the leave would be problematic, threatening them with negative consequences, or discouraging their use of FMLA leave may be found to violate the law. It is important to remember that, unlike the ADA, the impact of the employee’s FMLA leave is not a factor in the employee’s eligibility for the leave.