Gavel to Gavel: Exercise Care When Discussing Protected Leave

The workplace is governed by myriad laws and regulations, most of which only impose liability on employers, not on individual supervisors and managers. That’s not true of the Family and Medical Leave Act, which allows for liability to be claimed against the employer and manager in his/her individual capacity.

In the recent case of Ziccarelli v. Dart, the U.S. Circuit Court of Appeals for the 7th Circuit had to decide whether the FMLA can be violated by a manager simply discouraging an employee from requesting FMLA leave, even if the employer does not ultimately deny the request. On June 1, the 7th Circuit ruled this kind of managerial activity can amount to an FMLA violation.

The plaintiff was a corrections officer at the Cook County, Illinois Sheriff’s Department. After being diagnosed with work-related post-traumatic stress disorder, he called a manager to discuss a leave of absence. The officer didn’t have enough FMLA leave to cover the doctor-recommended time away, so he proposed a mix of FMLA, sick and annual leave. According to the plaintiff, his manager’s response was negative, indicating he would be disciplined if he took any more FMLA.

In response, the officer retired and then sued, claiming interference with his FMLA rights and “constructive discharge.” The officer lost on both claims at the district court, but on appeal the 7th Circuit revived the FMLA interference claim holding that a jury should decide the matter.

The 7th Circuit focused on the FMLA’s prohibition against interfering with, restraining or denying “the exercise of or attempt to exercise” FMLA rights. In other words, just interfering with the exercise of FMLA rights is illegal, even if the FMLA benefits are never actually denied. The appellate court found that after the officer was allegedly told he would be disciplined for using more FMLA leave, he never submitted another FMLA request. That fact alone was enough to submit the cause of action to a jury to determine if his decision to forego FMLA was a consequence of the manager’s comments.

The takeaway is that managers must refrain from comments that cast a negative light on an employee’s right to use protected FMLA leave. One best practice is to reserve FMLA conversations with employees for human resources professionals, whose training and experience will help insulate against situations like that described in Ziccarelli.

This article first appeared in The Journal Record on June 22, 2022, and is reproduced with permission from the publisher.