She didn’t prove entitlement to FMLA leave – but can still sue for retaliation

The breadth of the FMLA’s ban on unlawful retaliation is demonstrated by a recent federal appeals court ruling.

In the ruling, the court said a former employee can proceed with her retaliation claim under the statute even though she did not establish that she was entitled to take FMLA leave.

The case involves Polina Milman, who in 2018 began working as an attorney for the Fieger & Fieger law firm in Michigan.

On a Friday in the middle of March 2020, the emerging spread of COVID-19 caused then-President Trump to declare a state of emergency. As a result, all schools and daycare facilities closed immediately.

The firm assigned Milman to work from home for one day as a test run, and Milman was scheduled to do so on the following Wednesday.

On the Saturday before the scheduled work-from-home day, Milman emailed a partner at the firm to express concerns about COVID-19 exposure. She also said her children’s daycare facility had closed, and that she had a young son whose health history put him at greater risk of contracting the virus.

She asked the partner if she could work from home on Monday and Tuesday, but he said he could not approve work-from-home requests.

Firm owner Geoffrey Fieger — yes, that Geoffrey Fieger — denied the request on Monday, and Milman used PTO for those days.

By Tuesday, her son had developed symptoms consistent with COVID-19, including a cough and runny nose.

Unlawful retaliation?

Her direct supervisor called her that day to ask whether she intended to return to work on Thursday. She said that she would do so, and she confirmed that intention again on Wednesday.

But her son’s condition did not improve before then, and on Thursday she asked HR if she could take unpaid leave that day. HR responded by saying she could work from home for the rest of the week. Milman accepted the offer and worked with her direct supervisor throughout the day on Thursday.

But at the end of the day, HR emailed her a letter, signed by the firm’s owner, that terminated her employment because she did not come into the office to work. A few days later, the owner sent a second termination letter that asserted Milman had quit.

Milman sued, asserting violation of the FMLA and adding a state-law claim of wrongful discharge.

At the trial court, the firm filed a motion to dismiss the lawsuit.

The trial court granted the motion, rejecting the FMLA claim and declining to address the state-law allegations.

Trial court ruling

As to the FMLA claim, the trial court decided that Milman could not proceed further because she did not show that she was entitled to FMLA leave. Without that, it reasoned, her FMLA claim was doomed. It added that Milman did not allege facts sufficient to support the conclusion that her child had a “serious health condition” within the meaning of the statute.

On appeal, Milman argued that the trial court mistakenly concluded that she needed to show entitlement to FMLA leave in order to successfully claim retaliation under the statute. She noted that she made a request for leave but did not take any leave.

The firm insisted that an employee cannot engage in protected activity, and thus cannot prove unlawful retaliation under the statute, without first proving entitlement to leave.

Milman countered that she was fired for asking about and making a request for FMLA leave, which she said is protected activity under the statute.

The Sixth Circuit reversed the trial court’s decision and remanded the case for further proceedings.

The appeals court explained that the FMLA requires employees to put their employers on notice of their desire to take leave under the law. An employee’s request for leave is protected activity under the act, it ruled.

“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,” the appeals court said.

Employees do not need to “know preemptively” whether a particular request falls within the scope of statutory entitlement, it added.

FMLA regulations are consistent with this interpretation, the appeals court said.

The case highlights the need to carefully evaluate all requests for FMLA leave as well as the broad scope of the law’s anti-retaliation prohibition.

Milman v. Fieger & Fieger, P.C., No. 21-2685 (6th Cir. 1/25/23).