In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 22-2118
DYAMOND DAVIS and ANTIONETTE BURNS,
                                               Plaintiffs-Appellants,
                                 v.

ILLINOIS DEPARTMENT OF HUMAN SERVICES,
                                                Defendant-Appellee.
                    ____________________

        Appeal from the United States District Court for the
                   Central District of Illinois.
           No. 2:18-cv-02246 — Colin S. Bruce, Judge.
                    ____________________

      ARGUED APRIL 12, 2023 — DECIDED MAY 14, 2025
                ____________________

   Before SCUDDER, KIRSCH, and LEE Circuit Judges.
    LEE, Circuit Judge. On May 12, 2017, Dyamond Davis told
her supervisor at the Shapiro Development Center, an as-
sisted living facility operated by Defendant Illinois Depart-
ment of Human Services (“DHS”), that she had to leave work
due to morning sickness caused by her pregnancy. Her super-
visor agreed, reminding Davis to complete the necessary
timekeeping paperwork.
2                                                    No. 22-2118

   Several weeks later, DHS granted Davis’s request for preg-
nancy leave under the Family and Medical Leave Act,

 et seq. (“FMLA”), retroactive to May. Never-
theless, it later determined that a portion of her absence on
May 12 was unauthorized for two reasons. First, it believed
that Davis’s FMLA leave did not cover morning sickness; sec-
ond, it concluded that Davis had violated Shapiro’s policies
requiring the substitution of accrued paid leave for FMLA
leave. And so, DHS terminated Davis’s employment in ac-
cordance with its attendance plan.
     Following an unsuccessful appeal of her termination to the
Illinois Civil Service Commission, Davis brought suit, alleg-
ing that DHS had interfered with her FMLA-protected rights.
Another Shapiro employee, Antionette Burns, joined the com-
plaint asserting a substantially similar claim. After discovery,
the district court dismissed Burns’s claim for lack of Article III
standing and entered summary judgment in favor of DHS on
Davis’s claim. Davis v. Ill. Dep’t Hum. Servs., No. 18-CV-2246,

, at *11 (C.D. Ill. May 31, 2022). Davis and
Burns appealed.
    Because we agree that Burns has failed to establish a con-
crete injury-in-fact, we affirm the district court’s dismissal of
her claim without prejudice. But because we find that dis-
putes of material fact exist as to Davis’s FMLA claim against
DHS, we reverse the district court’s grant of summary judg-
ment as to her claim and remand for further proceedings.
                                I.
A. The FMLA and Pregnancy
   A review of the applicable law will provide a helpful
framework for the facts in this case. Under the FMLA, eligible
No. 22-2118                                                     3

employees are entitled to twelve workweeks of leave during
any twelve-month period due to a “serious health condition”
that renders them “unable to perform the functions of [their]
position.” 

(a)(1)(D). A “serious health condi-
tion” is one that involves “continuing treatment by a health
care provider” and includes any period of incapacity due to
pregnancy or prenatal care. 

 § 2611(11)(B); 

(b). Moreover, absences attributable to pregnancy-
related illnesses, such as severe morning sickness, qualify for
FMLA leave even if the employee does not visit the doctor
during the absence. 

(f); see 

§ 825.120(a)(4). In short, the FMLA applies to both pregnancy
and pregnancy-induced morning sickness.
    Although pregnant employees are entitled to FMLA leave
for morning sickness, that right is not absolute. Employers
have the right to require that their employees provide a med-
ical certification to justify the need for leave due to any serious
health condition. 

(a). And where an employee
seeks intermittent leave for a serious health condition “that
may result in unforeseeable episodes of incapacity,” the em-
ployer is entitled to require a medical certification that in-
cludes “information sufficient to establish the medical neces-
sity” for such intermittent leave. 

(a)(7). In
other words, employers may require pregnant employees to
medically certify the need for intermittent leave due to morn-
ing sickness, just as employers are entitled to seek medical
certification of any other serious health condition.
   Where an employer, like DHS, exercises its right to require
a medical certification, an employee must provide a “com-
plete and sufficient” certification. 

 § 825.305(c). If the em-
ployer believes the certification to be incomplete or
4                                                 No. 22-2118

insufficient, it is obligated to inform the employee and “state
in writing what additional information is necessary to make
the certificate complete and sufficient.” Id. § 825.305(c). A cer-
tificate is incomplete if “one or more of the applicable entries
have not been completed,” and it is insufficient if “the infor-
mation provided is vague, ambiguous, or non-responsive.” Id.
The employer must give the employee seven calendar days to
cure any deficiency. Id.
    Once approved for FMLA leave, an employee must give
proper notice when taking protected leave. She must state
some “qualifying reason” for the leave, but she need not “ex-
pressly assert rights under the Act or even mention the
FMLA.” Id. § 825.301(b). Although FMLA’s notice obligations
are not onerous, an employee may be required to comply with
the employer’s “usual and customary notice and procedural
requirements” for requesting time off. Id. §§ 825.302(d),
825.303(c). If an employee does not abide by these require-
ments and her failure is not justified by any unusual circum-
stances, approval of FMLA leave may be delayed or denied.
Nicholson v. Pulte Homes Corp., 

 (7th Cir.
2012); see Brown v. Auto. Components Holdings, LLC, 

 (7th Cir. 2010) (no interference where internal notice
policy required employees to report to work, return a partic-
ular form, or obtain a “call-in code number” within five days
of their initial return-to-work date); Lewis v. Holsum of Fort
Wayne, Inc., 

 (7th Cir. 2002) (no interference
where internal notice policy required an employee to notify
her employer of her inability to work each day of her FMLA
leave).
   Additionally, although FMLA leave is generally unpaid,
the Act allows an employee to substitute accrued paid leave
No. 22-2118                                                    5

for FMLA leave. The Act also allows an employer to require
that its employees substitute accrued paid leave for unpaid
FMLA leave. 

(a). In such cases, any accrued
paid leave “will run concurrently with the unpaid FMLA
leave,” and the employee will be paid during the leave that
would otherwise go unpaid. 

    When an employer requires substitution of accrued paid
leave under this provision, “the employer must inform the
employee that the employee must satisfy any procedural re-
quirements of the paid leave policy only in connection with
the receipt of such payment.” Id.; see also 

 § 825.300(c)(iii)
(employers must notify employees of “[t]he employee’s right
to substitute paid leave, whether the employer will require
the substitution of paid leave, the conditions related to any
such substitution, and the employee’s entitlement to take un-
paid FMLA leave if the employee does not meet the condi-
tions for paid leave.”).
    Notably, an employee remains entitled to her unpaid
FMLA leave even if she fails to comply with the employer’s
paid leave substitution policy, although she will not be enti-
tled to any pay during the leave. See id. § 825.207(a) (“If an
employee does not comply with the additional requirements
in an employer’s paid leave policy, the employee is not enti-
tled to substitute accrued paid leave, but the employee re-
mains entitled to take unpaid FMLA leave.”).
6                                                             No. 22-2118

B. Shapiro’s FMLA Policies 1
    Shapiro provides eligible employees with an FMLA
packet whenever they request FMLA leave or Shapiro learns
that they have missed work for a potentially FMLA-
qualifying reason. This packet includes, among other things,
a blank medical certification form for the employee’s doctor
to complete, as well as a document entitled “FMLA Remind-
ers,” which sets forth Shapiro’s internal FMLA policies and
procedures. These policies form the crux of this appeal.
    Turning first to Shapiro’s FMLA notice requirements,
when an employee requests FMLA leave, the company re-
quires her to verbally indicate that the absence is for “FMLA”
purposes or otherwise state a medical condition that is cov-
ered by the Act. The employee also must comply with
Shapiro’s standard “call-off procedures” (that is, calling in at
least one hour prior to a missed shift or notifying the appro-
priate supervisor when leaving early). Shapiro’s FMLA Re-
minders do not expressly provide any penalty for failing to
follow these notice procedures but, as explained above, an
employer may deny FMLA leave if an employee fails to pro-
vide proper notice of an absence. See Nicholson, 

.
   In addition, Shapiro requires an employee, when taking
FMLA leave, to substitute any accrued paid leave for unpaid
FMLA leave until all of the accrued paid leave is exhausted.
For example, an employee, who takes eight hours of FMLA


    1 Although Shapiro is operated by DHS, it retained the authority to
issue the personnel policies at issue. Accordingly, we will refer to the pol-
icies as “Shapiro” policies with the understanding that DHS enforces these
policies.
No. 22-2118                                                                7

leave but has four hours of accrued paid sick leave, must use
the accrued paid leave as part of her FMLA leave.
   Shapiro has more than a thousand employees and under-
standably requires its employees to know the amount of paid
leave they have accrued. To this end, the FMLA Reminders
explain that if the employee does not have the requested ac-
crued benefit time to cover the absence, the absence will re-
main unauthorized “whether or not it is an FMLA related ab-
sence” and that “disciplinary action may be taken.” If Shapiro
receives a request for unpaid FMLA time, but an employee
has paid leave time available, “the employee will be required
to submit the appropriate forms to utilize the paid benefit
time.” And if an employee makes “repeated requests” to use
unpaid FMLA leave before exhausting paid leave, she may be
subject to disciplinary action.
C. Davis
    Davis was hired as a Support Service Worker in May 2015.
On April 29, 2017, she fell ill while at work. She left early and
went to Immediate Care, where she learned she was pregnant.
Davis subsequently missed work on May 1, May 2, May 5,
and May 6, 2017, due to pregnancy-induced morning sick-
ness. 2 Based on these absences, Shapiro gave Davis its FMLA
packet, which included the “FMLA Reminders” and the med-
ical certification form for Davis’s doctor to complete.




    2 Davis’s timesheet for May 6, 2017, seems to indicate that she worked
a full 8-hour shift. But because the parties do not dispute that Davis missed
work that day due to her pregnancy, we will accept the parties’ represen-
tations for the purposes of this appeal.
8                                                 No. 22-2118

    Davis’s obstetrician, Dr. Kathleen Mahoney, completed
the certification, noting that Davis’s “medical condition” was
“pregnancy” and that her expected delivery date was Decem-
ber 19, 2017. Dr. Mahoney also indicated that, because Davis
suffered from lupus, her pregnancy was considered high-risk,
and she required “additional testing done in addition to rou-
tine prenatal care.” The doctor also stated that Davis would
need leave to attend monthly medical appointments until
September 2017, biweekly appointments thereafter until No-
vember 2017, and weekly appointments thereafter until the
birth. Moreover, Dr. Mahoney expected Davis to require six
weeks of recuperation following childbirth (and possibly
more in the event of a caesarean delivery). Finally, Dr. Ma-
honey answered “no” to the question: “Will the condition
cause episodic flare-ups periodically preventing the em-
ployee from performing his/her job functions.”
   With this certificate in hand, Shapiro approved Davis for
FMLA leave for her pregnancy on June 1, 2017. The approval
was retroactive, providing coverage from May 4, 2017,
through December 31, 2017. Relying on Dr. Mahoney’s state-
ments, Shapiro approved Davis for a single continuous six-
week leave period following the birth, as well as intermittent
leave to cover her monthly medical appointments (up to two
hours each). The approval did not include leave for “possible
flare-ups.”
    Meanwhile, Davis continued to miss shifts due to her
pregnancy. On May 11, 2017, Davis was sick and missed work
to visit with Dr. Mahoney. She returned to work the next day,
May 12, 2017, with a doctor’s note. But later that day, after
completing four hours of her eight-hour shift, Davis felt ill
once again. She told her supervisor, Rebecca Irby, that she
No. 22-2118                                                             9

could not complete her shift due to morning sickness and that
she wanted to use FMLA leave. Irby, who was aware of Da-
vis’s pregnancy, told Davis she could leave for the day and to
indicate her absence as FMLA-related on her time report.
    When completing the paperwork, Davis sought to use
four hours of accrued holiday time to cover the absence in ac-
cordance with Shapiro’s paid leave substitution policy. But
Davis had only three hours and thirty minutes of holiday time
remaining. And, because she had not yet been approved for
FMLA leave, she did not indicate that the absence was FMLA-
related. Although Davis had other types of paid leave availa-
ble (including sick leave), DHS designated thirty minutes of
her May 12 absence as an “unauthorized absence” because, in
its view, the absence went beyond the scope of its FMLA ap-
proval. Moreover, it determined that Davis had violated
Shapiro’s paid leave substitution policy by seeking four hours
of holiday leave when she had only three hours and thirty
minutes available. Because the “unauthorized absence” trig-
gered Shapiro’s twelve-step progressive disciplinary policy,
DHS eventually terminated Davis’s employment. 3




    3 Shapiro’s progressive disciplinary policy provides that each occur-
rence of an unauthorized (“UA”) absence (i.e., an absence that is not pre-
planned but is properly reported by the employee to her supervisor)
counts as a separate offense, and each occurrence of an unexcused (“UX”)
absence (i.e., an absence that is neither reported to nor authorized by a
supervisor) counts as two offenses. After twelve offenses, termination is
required. All absences at issue in this case were designated “unauthor-
ized” absences.
10                                                   No. 22-2118

D. Burns
    Unlike Davis, we have very little information regarding
Burns’s employment history and use of FMLA leave. Accord-
ing to the operative complaint, Burns began working at
Shapiro in 2003 and was approved for FMLA leave for various
health conditions in 2016, 2017, and 2019. She alleges that, de-
spite these approvals, DHS improperly denied her the use of
FMLA leave for various absences deeming them “unauthor-
ized.”
                               II.
A. Burns’s Standing
    Turning first to Burns, we review de novo a district court’s
dismissal of a party for lack of standing. Perry v. Sheahan,

, 313 (7th Cir. 2000). And, as the party invoking
federal jurisdiction, Burns bears the burden of establishing
that (1) she suffered an injury-in-fact; (2) the injury is tracea-
ble to the challenged conduct of DHS; and (3) the injury is
likely to be redressed by a favorable judicial decision. Spokeo,
Inc. v. Robins, 

, 338 (2016) (citing Lujan v. Defs. of
Wildlife, 

, 560–61 (1992)). Burns fails at the first
step—injury-in-fact.
    When a plaintiff’s standing is challenged at the pleading
stage, “general factual allegations of injury resulting from the
defendant’s conduct may suffice.” Lujan, 

. But
when, as here, that challenge is brought at summary judg-
ment, the plaintiff may not “rest on such ‘mere allegations,’
but must ‘set forth’ by affidavit or other evidence ‘specific
facts’” that she suffered injury at the hands of the defendant.

No. 22-2118                                                   11

    We, like the district court, see no evidence in the record
from which a rational jury could conclude that Burns suffered
any injury due to DHS’s enforcement of Shapiro’s FMLA pol-
icies. Unlike Davis, Burns has produced no affidavits, testi-
monial evidence, or documents (such as timesheets or FMLA
approvals) to corroborate her allegations that her FMLA-
qualifying absences were denied in violation of the Act. In-
deed, she has provided no evidence that she was even ap-
proved for FMLA leave at all.
    Nevertheless, Burns argues that her injury is “the misclas-
sification of FMLA leave as unauthorized and the accompa-
nying discipline” associated with those absences. And she ar-
gues that “if Davis has standing … then it stands to reason
that Burns and the putative class [of which Burns is purport-
edly a member] have standing.” But no class has yet been cer-
tified. Accordingly, Burns must maintain her own personal
interest, which she has not done. Kohen v. Pac. Inv. Mgmt. Co.,

 (7th Cir. 2009); Spokeo, 578 U.S. at 338 (quot-
ing Simon v. E. Ky. Welfare Rts. Org., 

, 40 n.20
(1976)). We therefore agree with the district court that Burns
has failed to establish that she suffered an injury-in-fact and
affirm the dismissal of her claim without prejudice for lack of
standing.
B. Davis’s FMLA Interference Claim
    Turning to Davis’s FMLA interference claim, we review
the district court’s summary judgment determination de novo,
viewing all facts and making all reasonable inferences in the
light most favorable to Davis. Goelzer v. Sheboygan County,

 (7th Cir. 2010).
12                                                         No. 22-2118

    To succeed on her FMLA interference claim, Davis must
establish that (1) she was eligible for FMLA protections;
(2) DHS was covered by the FMLA; (3) she was entitled to
take leave under the FMLA; (4) she provided sufficient notice
of her intent to take leave; and (5) DHS denied her FMLA ben-
efits to which she was entitled. 

. There is no dispute
as to the first two elements—Davis was eligible for FMLA
protections, and DHS was covered by the FMLA.
    As for the third element, DHS contends that, based upon
Dr. Mahoney’s medical certification, it approved Davis’s re-
quest for FMLA leave only for monthly doctor’s appoint-
ments and a continuous period of leave after birth. 4 Davis’s
bouts of morning sickness, DHS argues, are “flare- ups” aris-
ing from Davis’s pregnancy, and Dr. Mahoney certified that
Davis would not require FMLA leave for “flare-ups.” Citing
Stoops v. One Call Communications, Inc., 

 (7th
Cir. 1998), the district court agreed, concluding that DHS was
entitled to rely on Dr. Mahoney’s statement in the medical
certification. Given this factual record, however, we disagree.
    First, it is difficult to see how DHS could consider morning
sickness to be a “flare-up” of Davis’s pregnancy when the
FMLA regulations expressly define morning sickness itself to
be a “serious health condition involving continuing treatment
by a health care provider.” See 

(f).
   Second, while it is true, as a general matter, that an em-
ployer may require a medical certification to support a


     4 For some reason, DHS’s approval does not account for the fact that
Dr. Mahoney’s certification also noted the need for leave to undergo addi-
tional testing and more frequent prenatal appointments as the due date
neared.
No. 22-2118                                                   13

request for intermittent leave even for morning sickness, here,
DHS was well-aware of Davis’s need to take intermittent
leave for morning sickness when it approved her FMLA re-
quest. In such cases, we have recognized that an employee’s
entitlement to FMLA leave is not strictly bound by the precise
parameters laid out in the medical certification.
    Consider Hansen v. Fincantieri Marine Group, LLC, 

 (7th Cir. 2014). There, Hansen provided a medical
certification from his doctor indicating that he would experi-
ence flare-ups from his medical condition “4 times per 6
months” lasting “2–5 day(s) per episode.” 

. When
Hansen’s absences exceeded this amount, the employer ter-
minated him, pointing in part to the statement in the certifica-
tion. Observing that the certification form only called for “es-
timates,” we rejected the employer’s rationale, noting that
Hansen’s absences were not so far in excess of the frequency
and duration noted in the certification. 

    What is more, in Hansen, we favorably cited to Fritz v. Phil-
lips Service Industries, Inc., 

 (E.D. Mich.
2008). In that case, Fritz had been granted continuous FMLA
leave in 2003 for a knee surgery. He later claimed that an in-
termittent, two-day absence in 2005 was covered under FMLA
as well because it involved the same “knee condition.” Fritz,

. Relevant here, the Fritz court deter-
mined that “[t]he absence of any certification that Plaintiff
would require leave beyond the initial eight-week recovery
period is not equivalent to an explicit certification that Plain-
tiff did not require any absence from work due to his condi-
tion.” 

. And the district court denied summary judg-
ment for the employer, reasoning that the employer was on
notice that the plaintiff had a serious health condition related
14                                                 No. 22-2118

to his knee and should have inquired further into his reasons
for taking leave before denying coverage. See 

.
    The reasoning underlying Hansen and Fritz guides us here.
First, the medical certification Dr. Mahoney completed only
sought her “best estimate” of Davis’s condition and its poten-
tial impact. Furthermore, the certification identified Davis’s
medical condition as a pregnancy, and DHS personnel knew
by early May that Davis was not only pregnant but also suf-
fering from severe bouts of morning sickness that caused her
to miss work. Indeed, it was Davis’s multiple absences due to
morning sickness in early May that prompted DHS to provide
Davis with its FMLA packet in the first place. Thus, a reason-
able jury could find that DHS knew that Davis would need
intermittent leave for morning sickness as a result of her preg-
nancy when it approved the leave.
    Furthermore, a reasonable jury could also find that, given
its knowledge of Davis’s morning sickness, DHS knew that
Dr. Mahoney’s certification was incomplete, in which case it
should have provided Davis with an opportunity to supple-
ment it. See 

(c) (“The employer shall advise
an employee whenever the employer finds a certification in-
complete or insufficient, and shall state in writing what addi-
tional information is necessary to make the certification com-
plete and sufficient.”); see also Hansen, 

. DHS
did not do so here.
    Our decision in Stoops is distinguishable. That case in-
volved an employee whose medical certification stated that
his medical condition would not require intermittent leave or
a reduced work schedule at all. Stoops, 

. And
we found it significant that Stoops knew his employer was re-
lying on this “negative certification” to deny his request for
No. 22-2118                                                  15

FMLA leave and was simply arguing that the certification was
incorrect. 

. By contrast, Dr. Mahoney’s certification
affirmatively indicated that Davis’s pregnancy would require
a reduced work schedule, both during the pregnancy and af-
ter the birth, and DHS knew that Davis would miss work due
to morning sickness before approving her leave. Thus, triable
issues of fact exist as to whether Davis was entitled to FMLA
leave on May 12.
    The fourth element likewise raises genuine issues of mate-
rial fact. DHS contends that Davis failed to provide sufficient
notice of her need to take FMLA leave when she left work on
May 12. But, as the district court acknowledged, Irby—Da-
vis’s supervisor that day—testified that Davis had informed
Irby that she needed to leave early because she was feeling ill
due to her pregnancy and that she wanted to use FMLA leave.
This is enough to create a factual issue as to the sufficiency of
Davis’s notice to DHS on May 12. See Valdivia v. Twp. High Sch.
Dist. 214, 

, 400 (7th Cir. 2019) (“Adequacy of no-
tice is a ‘fact-rich question’ that is ‘perhaps best resolved by
the trier of fact, particularly, where … the employer and em-
ployee dispute the quantity and nature of communications re-
garding the employee’s illness.’” (quoting Burnett, 472 F.3d at
479 n.4)).
    But our inquiry cannot stop there. According to DHS, even
if Davis was entitled to FMLA leave on May 12, she failed to
comply with Shapiro’s FMLA policies governing the substitu-
tion of accrued paid leave for FMLA leave. Thus, DHS asserts,
Davis has offered no evidence to show that DHS improperly
denied her the FMLA benefits to which she was entitled.
   Recall that Davis sought to use four hours of accrued paid
holiday time to cover her 4-hour absence on May 12; however,
16                                                 No. 22-2118

unbeknownst to her, she had only three hours and thirty
minutes of such leave available (although, again, she had four
additional hours of paid sick leave). This led DHS to deem
Davis’s absence on May 12 as “unauthorized,” which trig-
gered her termination under Shapiro’s attendance policy. In
DHS’s view, such grounds for termination are permissible un-
der the FMLA, and the district court agreed, noting that the
FMLA allows an employer to require its employees to “com-
ply with the employer’s usual and customary notice and pro-
cedural requirements for requesting leave.” 

(d).
     On appeal, Davis first contends that Shapiro’s paid leave
substitution policy on its face violates the FMLA. As she sees
it, § 825.302(d) by its terms only applies to situations when an
employee requests FMLA leave; it does not apply when, as
here, an employee fails to satisfy the employer’s policies on
how to record and account for leave time after the FMLA
leave is approved.
    As additional support, Davis points to 

(a), which governs when and how an employer may
require an employee to substitute accrued paid leave for un-
paid FMLA leave. That provision states, in part, that “[i]f an
employee does not comply with the additional requirements
in an employer’s paid leave policy, the employee is not enti-
tled to substitute accrued paid leave, but the employee re-
mains entitled to take unpaid FMLA leave.” 

 To Davis, this
means that an employee’s failure to follow her employer’s
paid leave substitution policy may preclude her from using
accrued paid leave while on FMLA leave, but it should not
prevent her from taking unpaid FMLA leave at all.
No. 22-2118                                                              17

    In response, DHS contends that the FMLA allows it to dis-
cipline Davis for failing to comply with its paid leave substi-
tution policy. In support, DHS cites to § 825.302(d) and related
cases. But in doing so, it confuses an employer’s rights under
§ 825.302(d) with those under § 825.207(a). 5
    As Davis points out, § 825.302(d) allows employers to im-
pose notice and procedural requirements an employee must
follow when requesting leave or calling off work for FMLA-
related reasons. This is evident from the very first sentence of
§ 825.302(d), which states, “An employer may require an em-
ployee to comply with the employer’s usual and customary
notice and procedural requirements for requesting leave, ab-
sent unusual circumstances.” 

(d) (emphasis
added). And, consistent with this focus, the provision goes on
to provide examples of such permissible requirements, all of
which discuss instances when an employee requests FMLA
leave or asks for time off. The consequences for an employee
who does not follow the employer’s notice and procedural re-
quirements for requesting FMLA leave are significant—the
employer can delay or deny the FMLA-protected leave. 

   By contrast, § 825.207 allows an employer to establish pro-
cedural requirements when an employee with approved
FMLA leave wishes “to substitute accrued paid leave for


    5 For example, DHS argues that “[e]ven assuming for the sake of ar-
gument that the FMLA did cover Davis’ May 12, 2017 absence, the FMLA
still allowed the Department to discipline her because she violated its
standard procedural requirements for requesting leave.” (Emphasis added).
In the same vein, the cases upon which DHS relies all address an em-
ployer’s ability to mandate certain conditions for requesting leave under
§ 825.302(d), not for substituting paid leave under § 825.207(a). See, e.g.,
Brown, 622 F.3d at 690–91; Lewis, 

.
18                                                 No. 22-2118

FMLA leave,” or when an employer would like to “require
the employee to substitute accrued paid leave for unpaid
FMLA leave.” 

. The provision, however,
sets out two significant limitations. First, an employer can
mandate compliance with such procedural requirements
“only in connection with the receipt of” the accrued pay. Sec-
ond, even if the employee fails to satisfy the requirements,
“the employee remains entitled to take unpaid FMLA leave.”

 Nothing in § 825.207 permits an employer to discipline (let
alone, terminate) an employee for failing to meet its paid leave
substitution policy, particularly when, as here, the FMLA
leave has been approved.
    This appears to be exactly what DHS did. First, it is undis-
puted that paragraphs 3 and 4 of the FMLA Reminders im-
pose requirements for the substitution of accrued paid leave
for unpaid FMLA leave and, thus, fall within the scope of
§ 825.207. Second, when Davis failed to comply with these
procedures, DHS counted the remaining 30 minutes on May
12 as an “unauthorized absence” rather than allowing Davis
to count that time as unpaid FMLA leave. Third, this “unau-
thorized absence” triggered Shapiro’s twelve-step attendance
policy which resulted in Davis’s termination. In short, a rea-
sonable jury could find that, had DHS counted the 30 minutes
as unpaid FMLA leave as § 825.207(a) requires, Davis would
not have been fired.
    To be sure, under § 825.207(a), an employer is entitled to
establish procedures requiring its employees to utilize ac-
crued paid leave in conjunction with unpaid FMLA leave. To
the extent that the FMLA Reminders require employees to be
familiar with their accrued paid leave and properly account
No. 22-2118                                                 19

for it when applying it to unpaid FMLA leave, they appear to
fall well within that permissible sphere.
    The problem is that Shapiro’s paid leave substitution pol-
icy appears to extend well beyond that point. Take, for exam-
ple, the last sentence of paragraph 3 in the FMLA Reminders,
which states: “If the employee does not have the requested
accrued benefit time to cover the absence, the absence will re-
main Unexcused (UA) whether or not it is an FMLA related ab-
sence and disciplinary action will be taken” (emphasis added).
Although the meaning of this sentence is not entirely clear
and may benefit from further factual development, the face of
the text appears to conflict with § 825.207(a)’s mandate that,
even when an employee fails to comply with the employer’s
paid leave substitution procedures, she “remains entitled to
take unpaid FMLA leave.” 

(a). Further-
more, nowhere do the FMLA Reminders inform Shapiro’s
employees that an employee is still “entitled to take unpaid
FMLA leave if the employee does not meet the conditions for
paid leave” as 

(c)(iii) requires.
   In sum, an employer can establish notice and procedural
requirements that its employees must follow when requesting
leave under the FMLA. 

 § 825.302(d). An employer also can
require its employees to exhaust accrued paid leave concur-
rently with unpaid FMLA leave and create procedures that
employees must follow in the process. Id. § 825.207(a). What
an employer cannot do is discipline an employee for failing to
comply with its paid leave substitution procedures by deny-
ing the employee the benefit of using approved FMLA leave
time (which, in this case, would have prevented Davis from
incurring the “unauthorized absence” that triggered her ter-
mination). See id. § 825.220(c) (stating that “employers cannot
20                                                    No. 22-2118

use the taking of FMLA leave as a negative factor in employ-
ment actions, such as hiring, promotions or disciplinary ac-
tions”).
    But, even putting this aside, triable issues of fact exist as to
whether DHS correctly applied its FMLA leave policies to Da-
vis in the first instance. For example, the FMLA Reminders
state:
       If a request for FMLA dock time is received, and
       paid accrued benefit time is available to cover
       the absence, the employee will be required to
       submit the appropriate forms to utilize the paid
       benefit time. Repeated requests to utilize FMLA
       dock time prior to the exhaustion of paid ac-
       crued benefit time may result in disciplinary ac-
       tion taken with the employee for failure to fol-
       low facility policies and procedures.
Similarly, Shapiro’s “Absenteeism & Tardiness” policy pro-
vides that “[c]ontinued application of benefit time not yet ac-
cumulated may result in the absence being recorded as unau-
thorized (UA).” But it is not evident from this record whether
Davis’s failure to properly account for her 4-hours absence on
May 12 was a repeat offense. Nor is it clear whether this policy
was consistently applied, given that Davis made a similar
mistake on June 13, 2017, and her manager corrected her time
report for her.
    Furthermore, DHS contends that Davis failed to properly
alert DHS that she wanted to use FMLA leave for her absence
on May 12. But this fact is disputed. Davis informed her man-
ager about her pregnancy and morning sickness on May 12,
and a reasonable jury could find based upon testimony from
No. 22-2118                                              21

Shapiro employees that this was sufficient under the com-
pany’s procedures to constitute a request for FMLA leave.
Such factual disputes also preclude summary judgment for
DHS as to Davis’s FMLA claim.
                            III.
    For the foregoing reasons, we AFFIRM dismissal of
Burns’s claim for lack of standing without prejudice. But,
finding genuine disputes of material fact on Davis’s FMLA
interference claim, we REVERSE summary judgment in favor
of DHS and REMAND the case to the district court for further
proceedings.
22                                                  No. 22-2118

    KIRSCH, Circuit Judge, concurring in part and concurring in
the judgment. The majority concludes that the Illinois Depart-
ment of Human Services cannot discipline Dyamond Davis
for failing to comply with Shapiro Development Center’s paid
leave substitution policy because doing so violates the FMLA.
The majority reaches this conclusion by first determining that
Shapiro’s policy falls within the scope of 

(a)
and not § 825.302(d). I write separately because I think there
is a factual issue that must be resolved by a jury before that
determination can be made.
    Sections 825.302(d) and 825.207(a) cover different circum-
stances. Section 825.302(d) applies to an employee’s request
for leave. Section 825.207(a) applies to any additional require-
ments the employee must comply with to be paid for that
leave, but it doesn’t apply to requirements for how an em-
ployee must request leave in the first place. That’s the domain
of § 825.302(d).
    DHS argues that Shapiro’s “usual and customary notice
and procedural requirements for requesting leave,”
§ 825.302(d), include the requirements that its employees
know how much paid leave they have accrued and accurately
substitute that paid leave when requesting FMLA leave—in
other words, that they comply with Shapiro’s paid leave sub-
stitution policy. DHS’s argument makes sense: as part of an
employer’s usual procedural requirements for requesting
leave, the employer might well mandate that its employees
keep track of their paid leave and use it all before taking un-
paid FMLA leave. Such a requirement would balance the em-
ployees’ interest in having adequate leave to manage their se-
rious health conditions with the employer’s interest in having
its employees present to do the jobs it pays them to do. This
No. 22-2118                                                   23

balance would be consistent with the FMLA, which creates a
floor for leave but not a supplement. Thus, DHS could be cor-
rect that Shapiro’s paid leave substitution policy is part of its
usual and customary notice and procedural requirements for
requesting leave. If so, I would agree with DHS that
§ 825.302(d) controls and that it could deny Davis FMLA
leave.
    But an employer’s usual procedural requirements for re-
questing leave might be separate from what the employee
must do to get paid for that leave. For instance, an employer
might only require that an employee request leave by seeking
verbal approval from her on-site supervisor. Then, as an ad-
ditional requirement to get paid for the leave, the employer
might require that the employee accurately report on her
timesheet the paid leave she is substituting for her unpaid
FMLA leave. That is distinct from the requirement for re-
questing the leave in the first place. If this framework de-
scribes Shapiro’s policies, I would agree with the majority that
§ 825.207(a) controls and that DHS could not deny Davis
FMLA leave.
    The problem is that the existing factual record doesn’t pro-
vide an answer either way. The policies DHS cites in support
of its argument don’t conclusively define which of its require-
ments count as usual and customary for requesting leave.
DHS points to Shapiro’s Time Off procedures in combination
with its FMLA Reminders. While those documents discuss
Shapiro’s paid leave substitution policy, they do not make
clear whether this policy is a usual and customary require-
ment Davis must follow whenever she requests leave or just
an additional one she must satisfy if she wants to get paid for
24                                                No. 22-2118

her leave. Nothing else in the record provides a clear answer
either.
    So, in my view, whether Shapiro’s paid leave substitution
policy is part of its “usual and customary notice and proce-
dural requirements for requesting leave,” § 825.302(d), or is
instead an “additional requirement[] in [its] paid leave pol-
icy” that applies “only in connection with the receipt of [ac-
crued paid leave] payment,” § 825.207(a), is a question of fact
that turns on just what Shapiro’s usual and customary proce-
dural requirements for requesting leave are. Because the fac-
tual record in this case is inconclusive, I would remand for a
jury to determine the answer.