High Court won’t rule on discouraging FMLA leave case

Back in June, we wrote about a case from the 7^th Circuit indicating that employers violate the FMLA if they discourage employees from taking leave even if they don’t deny leave. The employer lost the argument and wanted the U.S. Supreme Court to chime in. This week, however, the High Court turned down the employer’s request. Therefore, the 7^th Circuit ruling stands.

In the case, Salvatore, an employee, took leave due to his post-traumatic stress disorder (PTSD). One year, he had used 304 of his 480 hours of FMLA leave by September.

The company’s leave administrator responded to Salvatore’s leave request by indicating that he’d “…taken serious amounts of FMLA…don’t take any more FMLA. If you do so you will be disciplined.” The leave administrator did not explain what discipline would be involved, but Salvatore inferred that he would be fired. Instead, he retired and filed a claim.

Salvatore argued that the employer interfered with his FMLA rights because he was discouraged from taking FMLA leave to which he was entitled, and that he was retaliated against because he was constructively discharged. The employer argued that it never denied Salvatore any FMLA leave, so it did not violate the FMLA.

The court held that employers could violate the FMLA even if they do not actually deny FMLA leave. It indicated that it is unlawful for a covered employer to “interfere with, restrain, or deny” an eligible employee’s exercise or attempt to exercise FMLA rights.

The court pointed out that the law protects “the attempt to exercise” FMLA rights, which would make little sense if actual denial were required. If, for example, an employer has a burdensome approval process or discourages employees from requesting FMLA leave, the employer could interfere with and restrain access without denying many requests, because few requests requiring a formal decision would ever be made. Not providing the required FMLA information, or verbally discouraging FMLA use before employees actually requested leave could also be interference. Threatening to discipline an employee for seeking or using FMLA leave to which he is entitled clearly qualifies as interference with FMLA rights.

Ziccarelli v. Thomas J. Dart, et al., 7^th Circuit Court of Appeals, No. 19-3435, June 1, 2022.

Key to remember: Employers can risk an interference claim if they discourage or restrain FMLA rights without explicitly denying a leave request.