Gavel to Gavel: Exercise care when discussing protected leave


Adam W. Childers

The office is ruled by myriad legal guidelines and rules, most of which solely impose legal responsibility on employers, not on particular person supervisors and managers. That’s not true of the Household and Medical Depart Act, which permits for legal responsibility to be claimed towards the employer and supervisor in his/her particular person capability.

Within the current case of Ziccarelli v. Dart, the U.S. Circuit Courtroom of Appeals for the seventh Circuit needed to resolve whether or not the FMLA will be violated by a supervisor merely discouraging an worker from requesting FMLA depart, even when the employer doesn’t in the end deny the request. On June 1, the seventh Circuit dominated this type of managerial exercise can quantity to an FMLA violation.

The plaintiff was a corrections officer on the Cook dinner County, Illinois Sheriff’s Division. After being recognized with work-related post-traumatic stress dysfunction, he known as a supervisor to debate a depart of absence. The officer didn’t have sufficient FMLA depart to cowl the doctor-recommended time away, so he proposed a mixture of FMLA, sick and annual depart. In response to the plaintiff, his supervisor’s response was damaging, indicating he could be disciplined if he took any extra FMLA.

In response, the officer retired after which sued, claiming interference together with his FMLA rights and “constructive discharge.” The officer misplaced on each claims on the district courtroom, however on enchantment the seventh Circuit revived the FMLA interference declare holding {that a} jury ought to resolve the matter.

The seventh Circuit centered on the FMLA’s prohibition towards interfering with, restraining or denying “the train of or try and train” FMLA rights. In different phrases, simply interfering with the train of FMLA rights is illegitimate, even when the FMLA advantages are by no means really denied. The appellate courtroom discovered that after the officer was allegedly instructed he could be disciplined for utilizing extra FMLA depart, he by no means submitted one other FMLA request. That reality alone was sufficient to submit the reason for motion to a jury to find out if his choice to forego FMLA was a consequence of the supervisor’s feedback.

The takeaway is that managers should chorus from feedback that solid a damaging mild on an worker’s proper to make use of protected FMLA depart. One finest apply is to order FMLA conversations with workers for human assets professionals, whose coaching and expertise will assist insulate towards conditions like that described in Ziccarelli.

Adam W. Childers is an legal professional with Crowe & Dunlevy,, and chair of the Labor & Employment Follow Group.