Can an employer violate the FMLA even though it never denies an employee’s request for FMLA leave?

Ask Salvatore Ziccarelli, who we’ll call Sal for short. Sal worked for the Sheriff as a corrections officer in my backyard, Cook County, Illinois.

Over the course of 27 years working for the Sheriff, Sal developed a number of health conditions, including work-related post-traumatic stress disorder. Sal took quite a bit of FMLA leave over time, and as of September 2016, he already had used more than two-thirds of the 12 weeks he was allotted for FMLA. So, when he lined up to take FMLA leave yet again, the benefits manager overseeing FMLA benefits allegedly told Sal this time around:

You’ve taken serious amounts of FMLA . . . don’t take any more FMLA. If you do so, you will be disciplined.


As the story goes, Sal retired days later, and he did what former employees are oft inclined to do — he sued his former employer.

His claim?  Even though he was never denied FMLA leave, he alleged that the County interfered with his FMLA rights, which is a violation of the law.

The Ruling

The County made the best argument an employer could under the circumstances: it didn’t interfere with Sal’s FMLA rights because his FMLA request was not actually denied. He simply elected to retire.

Not so fast, Sheriff John Brown, said the court.

The court noted that the FMLA specifically states in the statute itself that it is illegal for an employer “to interfere with, restrain, or deny” the exercise of FMLA rights.  So, it found that it is unlawful either to “interfere with” or to “restrain,” or to “deny.” Notably, if a plaintiff had to show a denial of FMLA leave in every case, there would be no point to the words “interfere with” or “restrain.”  The court’s own words sum up the issue well:

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.

In other words, the employee need not establish that the FMLA leave request actually was denied.  Words or actions meant to restrain an employee from taking FMLA leave now or in the future is enough to support an FMLA claim.  Ultimately, a jury would need to weigh whether the manager’s words so interfered with his remaining FMLA leave time available by threatening to discipline him for using his remaining FMLA leave.  You can read the decision here: Ziccarelli v. Cook County (pdf)

Insights for Employers

To be fair, we’re only hearing Sal’s side of the story on this one. Cook County has denied that the benefits manager ever made the statement attributed to her.  But in the meantime, let’s identify the lesson here:

Employers, Your Managers Are Killing You. And there is one, simply reason why this is happening: You are not training your managers on their responsibilities under the FMLA. Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should be a stern warning against any stray comments about an employee’s medical leave, including any whiff of comments that an employee would be disciplined for using FMLA leave in the future. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.

Secondly, what should an employer do in this situation, other than making clear to managers that they must never ever never utter the kind of comments alleged here? My friend, Robin Shea, offers a good suggestion – send the employee a short letter outlining your discussion and inviting follow-up if the employee wants to use FMLA leave in the future.  This kind of communication shows that you take seriously your obligation to administer leave and it undermines any argument by Sal that you were coercing him not to use FMLA leave in future.

Training and authentic communication with your employees — two basic tools to drastically improve your FMLA compliance.