Picture this: A long-time employee with serious health conditions regularly uses Family Medical Leave Act (FMLA) leave each year. In some years, the employee uses only 10 hours of leave per year; in others, he uses hundreds of hours of leave. During the current leave year, the employee has used more than 300 hours of leave and, at his doctor’s recommendation, asks his employer for an additional 8 weeks of leave for treatment of his serious health condition. Specifically, the employee asks the employer about the possibility of using his available FMLA leave as well as his sick leave and other employer-provided leave benefits.
In response, the employer’s representative states that the employee has taken a significant amount of FMLA leave and tells him not to take any more FMLA leave or he will be disciplined. Based on this conversation, the employee decides not to take any more leave and, instead, chooses to retire. The employee then files a complaint alleging that the employer interfered with his rights under the FMLA.
This is the fact pattern recently analyzed by the Seventh Circuit Court of Appeals in Ziccarelli v. Dart et al. In Ziccarelli, the U.S. Court of Appeals for the Seventh Circuit (covering Illinois Indiana, and Wisconsin) reiterated the five elements an employee must establish in order to have a successful FMLA interference claim – namely that (1) the employee was eligible for FMLA protection; (2) the employer was covered by the FMLA; (3) the employee was...
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