The Family and Medical Leave Act (FMLA) prohibits employers from denying qualified employees’ requests for leave or otherwise interfering with employees’ rights under the law. What happens if an employee never requests FMLA leave, but later claims that the employer discouraged them from applying for leave to which they were entitled? Based on last week’s Supreme Court decision, the answer depends on where in the U.S. the employee works.

The Court declined to review the decision of the Seventh Circuit Court of Appeals in Dart v. Ziccarelli. In this case, a sheriff’s department employee alleged that he needed to take medical leave for psychological issues, but that the employer’s HR staff discouraged him from applying for FMLA leave on the basis that it could damage his career. He retired instead, and later filed suit for FMLA interference. The Seventh Circuit agreed, rejecting the employer’s argument that the FMLA only protects employees who actually apply for medical leave.

The Seventh Circuit joined several other appellate circuits (including the Fourth Circuit, which includes North Carolina, South Carolina, and Virginia) in holding that discouraging an otherwise qualified employee from applying for FMLA leave is a form of unlawful interference. Other appellate courts have held the opposite, reading the Act’s statutory language to limit interference claims to situations where the employee was denied a right or benefit they actually sought.

The Supreme Court’s denial of review means that the existing circuit split will remain in place, at least for now. Employees rights to sue for FMLA interference will depend on the interpretation of the Act by the appellate court covering the state where they work.

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