October 27, 2022

A recent court decision highlights how employers can be in violation of the Family Medical Leave Act (FMLA) by discouraging a qualified employee from exercising their right to take temporary unpaid leave from employment, even if the request itself is not denied. 

Under the FLMA, employers with at least 50 employees must provide employees who have worked at least one year (and at least 1,250 hours in that year) with 12 weeks of job protected, unpaid leave for certain family and medical circumstances. Employers cannot fire an employee on FMLA leave or because they are about to take FMLA leave, and they can’t use FMLA leave as a negative factor in employment actions, including promotion, discipline or layoff. 

Words and Actions Matter 

In June 2022, the US Court of Appeals for the Seventh Circuit Court ruled that the actual denial of an employee’s FMLA leave request isn’t necessary to constitute an FMLA violation. In Ziccarelli v. Dart, the Court found that the FMLA rights of a correctional officer were violated by the county when it warned the employee he would be disciplined for taking his remaining FMLA to attend a post-traumatic stress disorder treatment program. Out of fear of being terminated, the officer retired from his position. 

The Court ruled that the employer’s statements and actions intended to discourage the lawful use of FMLA leave. In its decision, the Court wrote, “Threatening to discipline an employee for seeking or using FMLA leave to which he is entitled clearly qualifies as interference with FMLA rights. So too can misstatements of fact by FMLA coordinators regarding eligibility for or entitlement to leave.” 

The takeaway for HR professionals, leave administrators and benefits coordinators is to carefully review employees’ leave balances and eligibility requirements before making statements regarding employees’ future entitlement to and use of FMLA leave.  

4 Common FMLA Violations to Avoid 

Employers should watch for these 4 common FMLA violations that can lead to costly penalties. 

1. Lack of FLMA notice 

By law, employers are required to provide their employees with notice of the FMLA, who is eligible and its benefits. This includes notifying new employees about their FMLA rights upon hire and physically or electronically posting FMLA rights for all employees to see and read. Employers may ask employees for specific documents related to an FMLA claim to verify information but should not require an excessive amount of documentation. 

2. Denying emergency FLMA requests based on 30-day rule 

Short notice by employees wanting to take FMLA leave isn’t cause to deny a request. According to the DOL, while employers may require up to 30 days’ advance notice for situations that are foreseeable, such as surgeries scheduled months ahead of time, the requirement for notice of unforeseen circumstances necessitating leave is “as soon as possible and practical.” 

For example, an employee might leave an employer a message that a family member broke their hip and needs immediate assistance. While short notice, it’s “as soon as practicable” within the meaning of the law. Acceptable notice can also be given after the fact— for instance, an employee who is hospitalized for a sudden stroke. Under the circumstances, it is sufficient for the employee to notify an employer of the need to take FMLA leave after waking up. 

3. Requiring employees to work while on FMLA leave 

Eligible employees are entitled to up to 12 weeks of unpaid leave per year for qualifying conditions or events. During this leave, an employer may communicate with the employee, but not to the extent that it interferes with the employee’s leave. An employer should not ask an employee to work from home or be available while on FMLA leave, even if it’s only for a limited number of hours each week. 

4. Not reinstating employees at their previous level 

Upon returning from FMLA leave, employees must be reinstated to their previous position. Everything, including job duties, location, benefits and pay, should be the same as it was before the employee left. Firing or demoting an employee for taking FMLA leave, disciplining them for being absent or penalizing them for seeking a promotion are all signs of FMLA retaliation by employers and a violation of the law. 

Traliant Insight 

The FMLA allows eligible employees to take unpaid, job-protected leave when family and medical circumstances make it difficult to perform their job. Ongoing FMLA training for managers and supervisors increases understanding of regulations, how to properly respond to employee requests for FMLA leave and when to involve HR or other departments to comply with the law. 



Mark Hudson