The Family and Medical Leave Act (“FMLA”) provides qualified employees with the right to take 12 weeks, either all at once or intermittently, of job-protected leave from work due to a personal or family medical need, or due to the birth or adoption of a child. (Best Law Read: How Do I Use FMLA To Care For My Child?; What Are My Mental Health Rights At Work?; Are All New Moms Entitled To Maternity Leave?). The FMLA requires employers to notify employees of their rights under the FMLA and prevents the employer from interfering with, limiting, or denying an employee any FMLA right. An FMLA interference claim arising when the employer fails to notify an employee of FMLA rights or interferes with, limits, or denies such FMLA rights.
What is FMLA intermittent leave?
Best Medical Leave Work Rights Lawyer Answer: Based on medical needs identified by a doctor, employees may be able use FMLA leave on an intermittent or reduced schedule basis. This means that instead of using all 12 weeks in one long block, an employee may break the FMLA leave into separate smaller or incremental blocks of time. These blocks can be for a few days or weeks at time as needed or can even used on an hourly basis, such as when reduced schedule is medically needed or a medical condition may arise during the workday and require less than a full day off, such as for an insulin spike or migraine headaches.
When an employee is planning in advance for medical leave or scheduled medical treatment, the FMLA requires the employee to reasonably work with the employer to schedule the leave or treatment so as not to unduly disrupt the employer’s operations, if possible.
Federal Law Update Ziccarelli v. Dart
Best FMLA Attorney Answer: A recent federal court of appeals case addressed this question.
On June 1, 2022, the United States Court of Appeals for the Seventh Circuit decided the case of Ziccarelli v. Dart, No. 19-3435, 2022 WL 1768844 (7th Cir. June 1, 2022). In that case, the employee, Salvatore Ziccarelli, was employed by the Cook County Sheriff’s Office as a corrections officer for 27 years, during which time he used intermittent FMLA leave. According to the decision, which interprets the facts in a light most favorable to the employee for the purpose of deciding whether the case gets to a jury, while Ziccarelli was requesting additional FMLA leave, the Sheriff’s Office’s FMLA manager, Wylola Shinnawi, discouraged him from taking. Specifically, in July 2016, Ziccarelli was being treated by hs psychiatrist for his work-related post-traumatic stress disorder (PTSD), and by September he had used 304 hours of his allowable 480 hours of FMLA leave for 2016. Ziccarelli testified at his deposition that he informed Shinnawi that he needed to use more FMLA leave so he could seek treatment but that the HR representative responded negatively, telling him: “you’ve taken serious amounts of FMLA …. don’t take any more FMLA. If you do so, you will be disciplined.” Ziccarelli said that Shinnawi nevre elaborated on what the discipline would be. In order to get the treatment that he needed, Ziccarelli retired from the department shortly after speaking with Shinnawi, effective on September 20, 2016, and did not use any additional FMLA before that point.
The United States District Court for the Northern District of Illinois held that because mere discouragement did not amount to FMLA interference, the employee could not state a claim and dismissed the case. In reversing the dismissal of this FMLA interference claim, the United States Court of Appeals for the Seventh Circuit held: “We hope this opinion will help clarify that an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request.”
First the United States Court of Appeals for the Seventh Circuit addressed the overall purpose of the FMLA:
The FMLA was designed “to balance the demands of the workplace with the needs of families” while guaranteeing workers reasonable access to medical leave “in a manner that accommodates the legitimate interests of employers.” 29 U.S.C. § 2601(b)(1)–(3). To that end, the FMLA grants eligible employees up to 12 workweeks of unpaid leave (480 hours) per year for medical and family reasons. See § 2612(a)(1) & (c). An eligible employee is entitled to restoration to the same or equivalent job and benefits when the leave ends, and to continuation of health insurance during leave. § 2614(a)(1) & (c)(1).
To protect these rights, the FMLA prohibits covered employers from (i) interfering with, restraining, or denying the exercise of FMLA rights; and (ii) discriminating or retaliating against employees for exercising FMLA rights. See § 2615(a)(1) & (a)(2). The FMLA also grants employees a right of action to recover damages for violations of these provisions. § 2617(a)(2).
I’ll break all of this down further.
What are the elements of an FMLA Interference claim?
Best Medical Leave Lawyer Answer: In Ziccarelli, the United States Court of Appeals for the Seventh Circuit held that to prevail on a case of FMLA interference, an employee must present evidence that: (1) the employee was eligible for FMLA protections; (2) the employer was covered by the FMLA; (3) he was entitled to leave under the FMLA; (4) he provided sufficient notice of his intent to take leave; (5) the employer interfered with, restrained, or denied FMLA benefits to which the employee was entitled; and the employee was prejudiced by the employer’s actions. See 29 U.S.C. § 2615(a)(1), 2617(a). While I have included prejudice as the sixth element, the “prejudice question is used to decide whether § 2617 provides relief for a proven violation. It does not set the threshold for what constitutes a violation of § 2615(a)(1) in the first place.” Ziccarelli. Given that the only time a claim for FMLA interference is raised occurs when relief is sought, there is no real reason to separate out this element. Indeed, many court will dismiss FMLA interference claims absent proof of prejudice.
Is there a specific way that I need to ask for FMLA leave?
Best Employment Law Attorney Answer: While there are not magic words that have to be used and while an employee need not even mention FMLA, the employee must provide the employer sufficient information that would allow the employer to understand that leave is being requested for a qualifying reason under the FMLA. In Ziccarelli, the United States Court of Appeals for the Seventh Circuit held on this point:
- 2615(a)(1) also protects “the attempt to exercise” FMLA rights. Suppose that an electrician meets with her employer and seeks medical leave information, intending to exercise FMLA rights. This likely qualifies as an attempt to exercise benefits under the Act even if the electrician does not specifically invoke the FMLA. Preddie, 799 F.3d at 816 (“The notice requirements of the FMLA are not onerous. An employee need not expressly mention the FMLA in his leave request or otherwise invoke any of its provisions.”), quoting Burnett v. LFW Inc., 472 F.3d 471, 478 (7th Cir. 2006).
Can HR Legally Discourage Me From Using FMLA?
Best Employee’s Rights Law Firm Answer: No. This was the central issue addressed by the United States Court of Appeals for the Seventh Circuit in Ziccarelli. As discussed earlier, the Court of Appeals concluded that FMLA interference claims are not limited solely to situation where the employer denied an FMLA leave request. The Court held:
reading the Act to permit employers to interfere with or restrain the use of FMLA rights as long as no unlawful denial occurs would conflict with and undermine the rights granted. 29 U.S.C. §§ 2601(b)(1) & (b)(2); 2617. Rights under the Act would be significantly diminished if it permitted employers to actively discourage employees from taking steps to access FMLA benefits or otherwise to interfere with or restrain such access. The Act was designed to accommodate “the legitimate interests of employers,” § 2601(b)(3) (emphasis added), but we see no legitimate interest for employers in impeding access to FMLA benefits by subterfuge, concealment, or intimidation.… Interference or restraint alone is enough to establish a violation, and a remedy is available under § 2617 if the plaintiff can show prejudice from the violation.
The United States Court of Appeals for the Seventh Circuit directly held that: “Threatening to discipline an employee for seeking or using FMLA leave to which he is entitled clearly qualifies as interference with FMLA rights.” In addition to pointing to threats against using FMLA being sufficient to establish an FMLA interference claim, the Seventh Circuit provided another example: “ an employer that implements a burdensome approval process or discourages employees from requesting FMLA leave could interfere with and restrain access without denying many requests because few requests requiring a formal decision would ever be made.”
What is an example of the prejudice requirement need to show FMLA interference?
Best Employment Lawyer Answer: Prejudice is shown by the loss or relinquishment of a given right. Applying this requirement to the facts in Ziccarelli, the Seventh Circuit held: “There is also evidence in the record that Shinnawi’s statements prejudiced Ziccarelli by affecting his decisions about FMLA leave. Ziccarelli had planned to use some of his remaining FMLA leave to seek treatment. After their conversation, Ziccarelli never submitted an FMLA request and did not use the remainder of his 2016 FMLA leave. Ziccarelli claims he was afraid of what would happen after Shinnawi threatened him with discipline for taking more FMLA leave.”
What should I do if my employer is making it hard for me to use FMLA?
Best FMLA Law Firm Answer: If you are entitled to FMLA leave and you employer is blocking or discouraging your medical leave rights, the most important thing that you is to call the right attorney as quickly as possible to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). The FMLA is complicated, and many other laws may also come into play. Our top attorneys in Cleveland, Cincinnati, Columbus, Toledo, Youngstown, Raleigh, and Detroit. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under the FMLA, ADA and Ohio employment law. Our lawyers will be here to get you the FMLA leave that you are entitled to or fight to get you paid for being wrongfully fired.
This employee’s rights website is an advertisement. The FMLA materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my manager won’t consider my medical leave request?”, “can my employer block me from taking medical leave?”, “what should I do if my manager told me it is not a good time to take FMLA leave?”, or “is my employer allowed to stop me from using medical leave”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, LLC, Brian Spitz, or any individual attorney.