7th Circuit clarifies that discouraging leave may violate FMLA

Recently, the U.S. Court of Appeals for the 7th Circuit (which covers Illinois, Indiana, and Wisconsin) wrestled with the question of whether an employer can violate the Family and Medical Leave Act (FMLA) by discouraging an employee from exercising rights under the Act without actually denying an FMLA leave request. In an important decision, the court reversed the lower court’s ruling in favor of the employer and clarified that “interfering, restraining, and denying are distinct ways of violating the FMLA.”

Oh give me a home

In 1989, Salvatore Ziccarelli began working for the Cook County, Illinois, sheriff’s office—where he would be employed for 27 years. Between 2007 and early 2016, he requested and received between 10 and 169 hours of FMLA leave per year because of several serious health conditions.

In July 2016, Ziccarelli sought treatment from a psychiatrist for his work-related post-traumatic stress disorder (PTSD). By September of that year, he had used 304 hours of his allowable 480 hours of FMLA leave for 2016. At his doctor’s advice, he decided to apply for permanent disability benefits; but to do so he needed to exhaust all of his earned sick leave.

In a fateful conversation in September, Ziccarelli called Wyola Shinnawi, the sheriff’s office FMLA manager, to discuss the possibility of using a combination of FMLA leave, sick leave, and annual leave so he could attend an eight-week treatment program to address his PTSD. His and Shinnawi’s accounts of that call are hotly contested.

Where seldom is heard a discouraging word?