Picture this: A long-time employee with serious health conditions regularly uses Family Medical Leave Act (FMLA) leave each year.  In some years, the employee uses only 10 hours of leave per year; in others, he uses hundreds of hours of leave.  During the current leave year, the employee has used more than 300 hours of leave and, at his doctor’s recommendation, asks his employer for an additional 8 weeks of leave for treatment of his serious health condition.  Specifically, the employee asks the employer about the possibility of using his available FMLA leave as well as his sick leave and other employer-provided leave benefits. 

In response, the employer’s representative states that the employee has taken a significant amount of FMLA leave and tells him not to take any more FMLA leave or he will be disciplined.  Based on this conversation, the employee decides not to take any more leave and, instead, chooses to retire.  The employee then files a complaint alleging that the employer interfered with his rights under the FMLA. 

This is the fact pattern recently analyzed by the Seventh Circuit Court of Appeals in Ziccarelli v. Dart et al.  In Ziccarelli, the U.S. Court of Appeals for the Seventh Circuit (covering Illinois Indiana, and Wisconsin) reiterated the five elements an employee must establish in order to have a successful FMLA interference claim – namely that (1) the employee was eligible for FMLA protection; (2) the employer was covered by the FMLA; (3) the employee was entitled to FMLA leave; (4) the employee provided adequate notice of an intent to take leave; and (5) the employer denied or interfered with FMLA benefits to which the employee was entitled resulting in harm to the employee. 

With regard to the fifth element, the court noted that some cases have referred to the “denial” of FMLA benefits but clarified that the FMLA “does not require an actual denial of FMLA benefits” for a violation of the FMLA to occur.  Instead, an employer violates an employee’s FMLA rights when it denies, interferes with, or restrains the employee’s exercise or attempt to exercise such rights.  The court stated that examples of prohibited interference or restraint include refusals to grant or accept proper requests for FMLA leave, burdensome FMLA approval processes, informing an employee with FMLA leave available that missing additional time will have consequences, and other actions that discourage employees from requesting FMLA leave.  With respect to Mr. Ziccarelli, the  court concluded that he had more than a month of FMLA leave available at the time he requested FMLA leave from his employer and, therefore, the alleged statement that Mr. Ziccarelli would be disciplined if he took any more FMLA leave was sufficient to support an FMLA interference claim and allow the matter to proceed to trial.

Notably, the employer’s representative denied Mr. Ziccarelli’s account of their leave-related conversation and stated that she simply told Mr. Ziccarelli that he did not have enough FMLA leave time remaining for the 8 weeks of leave he was requesting; therefore, if he used more leave than the FMLA leave he had remaining, his time would be coded unauthorized and the employer’s attendance review unit would handle the matter going forward.  Importantly, the Seventh Circuit indicated that, if the employer’s version of this conversation was credited, the Court “could not see a viable FMLA claim;” however, because the appeal involved a review of the lower court’s grant of summary judgment to the employer, the Seventh Circuit was required to treat all of Mr. Ziccarelli’s asserted facts as true and it would be up to a jury to decide which version of the conversation was more believable at trial.

The Seventh Circuit’s Ziccarelli opinion serves as a reminder to employers to exercise caution when communicating with employees about their requests for FMLA leave and to carefully document such conversations in order to ensure employees understand their rights and to limit future disputes regarding what was communicated to the employee. Employers with questions regarding FMLA leave eligibility and determinations should consult with experienced employment counsel before communicating with employees regarding any questionable determinations.