Wednesday, February 1, 2023

“Entitlement to FMLA leave” is not a prerequisite to an FMLA retaliation claim

The 6th Circuit revived the FMLA retaliation claim of an attorney fired immediately after she requested unpaid leave to care for her two-year old child at the start of the Covid-19 pandemic.

In mid-March 2020, Polina Milman, an attorney working at Fieger & Fieger PC, requested permission first for unpaid time off, and then to work remotely, to care for her two-year-old son who was exhibiting Covid symptoms and was already vulnerable because of a previous bout of RSV. The firm initially granted her WFH request. On her second remote workday, however, she received a termination letter, stating that she had refused to work because her "child had a cold" and "it was clear [she] had quit."

Milman claimed that the firm unlawfully fired her for inquiring about taking FMLA leave. Fieger & Fieger argued that it could have retaliated against her because she never actually took any leave under the FMLA.

The 6th Circuit sided with Milman. 

Suppose that an employee, intending to exercise her FMLA rights, meets with her employer and asks questions concerning her FMLA rights, then is fired for doing so. Concluding that no FMLA violation could occur if it turns out that the employee is not entitled to leave would render the employee unprotected during the step required to initiate the FMLA's process. Without protection, employees would be discouraged from taking authorized initial steps—including preparing or formulating a request—to access FMLA benefits.… Accordingly, for the Act to protect the "exercise or attempt to exercise" FMLA rights, the procedural framework the statute established—including its first step—must fall within the scope of protected activity, without regard to ultimate entitlement.

The Court added: "There is no basis for imagining that Congress created a statutory scheme that puts the onus on employees to know preemptively whether their leave requests would fall within the scope of statutory entitlement—an aspect of the FMLA that is hardly a model of clarity."

In other words, if an employee even just asks about FMLA leave, that inquiry is protected from retaliation, quite the common-sense interpretation and application of the statute.