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Sixth Circuit Expands Retaliation Protections For Employees Potentially Entitled To Leave Under The FMLA

The Sixth Circuit Court of Appeals recently cemented expansive protections for employees asking for a leave of absence even where the leave may not qualify for protection under the Family Medical Leave Act (FMLA).

In Polina Milman v. Fieger & Fieger P.C. et al., the Sixth Circuit made it clear that an employee does not have to make a specific request for FMLA leave, or even be entitled to take FMLA leave, to qualify for protection from retaliation under the act, as long as they make a request that raises the question of potential entitlement to FMLA leave.

In the early days of the pandemic, an attorney with Fieger and Fieger P.C. requested to work remotely. In addition to this request, she expressed concerns about working in person as her son, who was beginning to exhibit symptoms of COVID-19, was vulnerable to infection due to a recent bout of respiratory syncytial virus (RSV). The firm’s owner denied her request, and she contacted the firm’s human resources department. 

The attorney then offered to take unpaid leave (but did not explicitly request FMLA leave) and human resources instead offered that she work from home for a few days. When she did not return to the office, her employment was terminated. She later sued alleging FMLA retaliation in addition to various claims arising under Michigan state law.

The U.S. District Court for the Eastern District of Michigan dismissed the case, holding that the attorney was required to show “she was entitled to FMLA leave” to sustain an FMLA retaliation claim – which she failed to do because she had not established she would be caring for someone with a “serious medical condition.” However, on appeal, the Circuit Court disagreed and reversed the District Court’s ruling. Specifically, the court held that under the FMLA, an employee does not have to make a specific request for leave to qualify for protection from retaliation, as long as they make a request that raises the question of possible entitlement to FMLA leave (even if they are not actually eligible). According to the court, the FMLA does not require employees to know “presumptively whether their leave requests would fall within the scope of statutory entitlement.” 

Instead, this burden falls upon the employer. In this case the court went on to affirm an employer’s obligation to work with a requesting employee to gather information necessary to determine whether the requested leave qualifies under the FMLA.

The court noted that the firm seemingly recognized her need for accommodation to care for her son but failed to take any further action concerning whether she was entitled to leave under the FMLA. In failing to do so and simply electing to terminate her employment, the attorney had an actionable claim for retaliation.

This decision makes it clear that an employee requesting a leave of absence due to their, or a family member’s, medical condition might potentially be entitled to FMLA leave. As such, these inquiries and requests are afforded the same protections under the act from employer interference and retaliation, regardless of whether the employee is actually entitled to FMLA leave. With that in mind, employers should keep their obligations under the FMLA top of mind and take all necessary steps to determine whether an employee qualifies for leave before taking any further action on a request, especially any possible adverse action like denying leave or terminating employment.

© 2023 BARNES & THORNBURG LLPNational Law Review, Volume XIII, Number 34

About this Author


Leaning on more than 20 years of knowledge and experience in reading a table, Grant seeks out common ground to reach his client’s objectives. The majority of his practice focuses on consulting and representing private sector entities – including several large healthcare providers and several well-known mass transit systems – in traditional labor relations and general personnel matters. Grant’s goal is to help his clients avoid unnecessary employer-employee challenges by identifying issues before problems arise, skillfully negotiating resolutions, or vigorously defending actions to the...

Aaron Vance Employment Lawyer Barnes and Thornburg Indianapolis

A pragmatic litigator and advisor, Aaron Vance represents national and local employers in labor, employment and appellate matters. He provides thorough and approachable problem-solving focused on working toward the best possible outcome for his clients.

Aaron advises clients on labor and employment matters concerning federal and state law, equal opportunity employment practices, OSHA and workplace safety compliance, and wage and hour laws.