Sixth Circuit: Request for FMLA Leave Protected

Employment Law

An employee’s Family and Medical Leave Act (FMLA) lawsuit can move forward where her request for leave was protected—even if she was not entitled to it—the U.S. Court of Appeals, Sixth Circuit has ruled.

An attorney at Fieger & Fieger in Michigan, Polina Milman emailed a partner over the weekend in March 2020 to discuss her concerns about COVID-19 exposure, and requested to work from home on Monday, March 16, and Tuesday, March 17. She noted the fact that her son’s day care facility had been closed due to COVID-19.

The next day, Milman sent a follow-up email expressing concern about her son’s heightened vulnerability to contracting COVID-19 as a result of his bout with respiratory syncytial virus (RSV), which had put him in the hospital for five days and required his continued use of a nebulizer to treat his episodes of labored breathing.

In response, the partner suggested she make her request directly to Geoffrey Fieger, the owner of the firm.

Milman called Fieger on Monday morning to request a remote working arrangement, which he denied. She then contacted human resources, asking to use her paid time off for those two days, which was approved.

On Wednesday, March 18, Milman worked from home, as she had already been assigned to do. Her son had also developed symptoms resembling those of COVID-19 (cough, runny nose and gastrointestinal issues).

While she confirmed that she would be in the office on Thursday, March 19, her son’s symptoms persisted and worsened, and she contacted HR offering to take unpaid leave, if necessary, to stay home.

HR offered that she could work from home for the remainder of the week, and Milman worked throughout the day. However, she received an email that afternoon, signed by Fieger, that terminated her employment.

Milman sued the firm, asserting that her termination violated the FMLA. The firm moved to dismiss and the district court granted the motion, reasoning that because Milman failed to argue whether she was entitled to leave, her claim under FMLA failed.

The federal appellate panel reversed.

Section 2615(a) of the FMLA recognizes two types of claims, the court said. One (known as an entitlement or interference claim) arises when an employee is wrongfully denied a substantive entitlement; the second, a retaliation or discrimination claim, arises when an employer takes an adverse employment action against an employee for exercising or attempting to exercise a right protected by the FMLA.

But retaliation claims may be cognizable under both § 2615(a)(1) and § 2615(a)(2), the court noted.

“Section 2615(a)(1) makes it unlawful for an employer ‘to interfere with, restrain, or deny’ the exercise or attempted exercise of any right protected under the FMLA,” the court wrote. “Logically, an adverse employment action in response to the exercise of (or the attempt to exercise) a statutory right—retaliation for engaging in protected activity—is a form of interference or restraint on the ability to exercise that statutory right. Constraining § 2615(a)(1) to wrongful denials of FMLA entitlements only and making § 2615(a)(2) the only avenue for recourse against adverse employment action would ignore the plain text of § 2615(a)(1).”

Turning to the facts of the case, Milman’s core claim is that she was fired for inquiring about and making a request to take FMLA leave, which is “clearly cognizable” under both prongs of § 2615(a).

The panel further found that the FMLA protects the right of an employee to inquire about and request leave, even if it turns out that the employee is not entitled to such leave. The statute requires employees to put their employers on notice of their desire to use their unpaid leave by making a formal request to the employer as the first step in the process contemplated by the FMLA’s procedural framework.

Therefore, the steps of the process created by the statute—including the first step, the employee’s initial request for leave—“must be protected under the Act,” the court said. “FMLA rights and the statute’s purpose would be significantly diminished if employers could fire an employee who simply took the required initial steps to access FMLA leave.”

Without protection, employees would be discouraged from taking authorized initial steps—including preparing or formulating a request—to access FMLA benefits, the court explained, citing similar rulings from the Seventh and Eighth Circuits.

The court found additional support in the FMLA’s implementing regulations, where 29 C.F.R. § 825.220(a) states that “[t]he FMLA prohibits interference with an employee’s rights under the law, and with … inquiries relating to an employee’s rights.”

“Inquiries relating to entitlement to leave, like Milman’s, plainly fall within that definition,” the court wrote. “And, of course, the act of inquiring by its very nature is at odds with the conclusion that Milman must be entitled to leave.”

The scope of protected activity under the FMLA starts, the court said, with the first step contemplated under the act’s procedures: a request made to the employer.

“That request, moreover, need not lead to entitlement in order to be protected,” the court held. “In this case, when her son began exhibiting symptoms associated with COVID-19, Milman made a request to her employer for unpaid leave—following the first step of the FMLA’s process. The firm, through human resources, then offered, and Milman accepted, a work-from-home arrangement for those two days and never responded to her request. Milman’s action was grounded in a legitimate exercise of the FMLA’s procedural framework and was therefore protected under the FMLA.”

Characterizing Milman’s request for unpaid leave to care for her son “a hallmark FMLA claim,” the court concluded that her request for leave was protected, even if she was ultimately not entitled to it, reversing dismissal of her claim.

To read the opinion in Milman v. Fieger & Fieger, P.C., click here.

Why it matters: The Sixth Circuit decision recognized that protected activity under the FMLA begins with the first step in the statutory process—a request made to the employer for leave—even if the employee is not entitled to the leave.



pursuant to New York DR 2-101(f)

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