Most employers know that under the Family and Medical Leave Act (FMLA), employees who have worked at least one year (and at least 1,250 hours in that year) have the right to take leave for their own or a close family member’s serious health condition, among other reasons. And most employers that are subject to the FMLA (those that have at least 50 employees) understand that denying a qualified employee the right to take that leave would be a violation of the FMLA, as would retaliating against the employee for taking protected leave. But what about an employer that simply discourages employees from using available FMLA leave? Can that alone – simply suggesting it would better not to take FMLA leave, even if the request itself is not denied – violate the law?

That was the issue recently put before a federal appeals court. The case involved Salvatore Ziccarelli, a Cook County Sheriff’s Office correctional officer. Officer Ziccarelli had worked for the Sheriff’s Office for 27 years, during which time he developed a number of health conditions, including work-related post-traumatic stress disorder (“PTSD”). In September 2016, he already had used more than two-thirds of the 12 weeks he was entitled to take as FMLA leave pursuing treatment for his PTSD. He then asked the Sheriff’s Office’s FMLA benefits manager to use some of his remaining FMLA hours, as well as his regular leave and sick time benefits, to attend an intensive PTSD treatment program. The benefits manager allegedly told Officer Ziccarelli “you’ve taken serious amounts of FMLA …. don’t take any more FMLA. If you do so, you will be disciplined.” Upon hearing this, Officer Ziccarelli opted to retire and sued the benefits manager, the County Sheriff, and the County, alleging FMLA interference.

Although the defendants argued that Officer Ziccarelli could not have experienced FMLA interference because his request for FMLA leave was not actually denied – he elected to retire instead – a three-judge panel of the United States Court of Appeals for the Seventh Circuit (which covers Illinois, Wisconsin, and Indiana) concluded that an employee does not need to prove that his FMLA leave request was denied outright to successfully assert an interference claim. The court explained in its decision that “an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request.” It was therefore an issue for a jury as to whether the benefits manager’s statements to Officer Ziccarelli effectively interfered with, restrained, or denied his exercise of FMLA rights and caused him prejudice.

The Seventh Circuit’s opinion is a useful reminder that, when it comes to compliance with the FMLA, employers are judged not only their deeds – whether they timely provide notice of eligibility, whether they properly grant or deny leave, and whether they correctly track absences – but also on their words and attitude regarding leave. Statements or actions intended to discourage the lawful use of FMLA leave, even if time off is subsequently granted, may nonetheless support an actionable interference claim. As the Court writes in the opinion, “Threatening to discipline an employee for seeking or using FMLA leave to which he is entitled clearly qualifies as interference with FMLA rights.” So too can misstatements of fact by FMLA coordinators regarding eligibility for or entitlement to leave. In Officer Ziccarelli’s case, the benefits manager failed to clarify that Officer Ziccarelli had remaining FMLA leave available to him and unfairly threatened him with disciplinary consequences for exercising his FMLA rights in the future, leading him to resign rather than pursue job-protected time off – both actions that, when viewed in a light most favorable to the employee, state a claim of FMLA interference. HR professionals, leave administrators, and benefits coordinators are therefore reminded to carefully review employees’ leave balances and eligibility requirements before making statements regarding employees’ future entitlement to and use of FMLA leave.