Request for "FMLA leave" is protected activity, court says

Even if the employee doesn't qualify.

Picture this. You ask your boss whether you can take leave under the FMLA. Your boss asks why you want the leave, and you say your cat is sick.* It's your favorite cat. Your boss replies, "You want FMLA leave because your cat is sick? Get out of my office. And, come to think of it, I don't want anyone that stupid working for me, so pack up your stuff and hit the road. You're fired."

*FMLA leave is not available for a pet's serious health condition. (There is talk about adding pets from time to time, but it's never gone anywhere.)


You pack up your stuff, go to visit the nearest plaintiff's lawyer, who files a lawsuit against your employer, claiming that you were fired in retaliation for requesting FMLA leave.

Who wins?

In all likelihood, your employer. But according to a recent decision from a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, this issue may not always be so clear-cut.

Milman v. Fieger & Fieger, PC

Here's what happened, according to the plaintiff (the law firm hasn't had a chance to tell its side of the story yet, so the following is based only on the allegations in the lawsuit):

Polina Milman was hired in 2018 as an attorney in the Detroit-area law firm of Geoffrey Fieger. (Interesting bit of trivia: Mr. Fieger represented Dr. Kevorkian back in the 1990s.)

In March 2020, COVID-19 hit, and her team was scheduled to work from home on March 18 to see how this newfangled "working remotely" thing was going to pan out. Ms. Milman had a little boy (a human, not a cat) who was vulnerable to COVID because he'd recently been hospitalized for Respiratory Syncytial Virus, also known as "RSV." Ms. Milman asked her boss (not Geoffrey Fieger) whether she could work from home on March 16 and 17. Her boss told her she'd need to ask Mr. Fieger.

Ms. Milman called Mr. Fieger and asked whether she could work from home on March 16 and 17. Mr. Fieger said no. Ms. Milman then contacted the firm's HR department and asked to use her Paid Time Off to cover those days. HR said yes.

Meanwhile, you remember what March 2020 was like. The world as we knew it was falling apart. The federal government was "discouraging unnecessary travel and gathering in groups of more than 10 people." And Michigan Gov. Gretchen Whitmer (D) issued an executive order containing additional restrictions.


On March 17, while Ms. Milman was out on PTO, her boss called and asked whether she was coming to the office on March 19. She said she planned to return but was worried because her son's day care was closed. In addition, her son was having some COVID-like symptoms.

On March 18, the day that Ms. Milman and her team were assigned to work from home, her son got worse. At some point during the day, her boss called to see whether she would be coming to the office the following day, and she said she would.

But as of March 19, Ms. Milman's son still wasn't better, so she called HR and offered to take unpaid leave so she wouldn't have to come back to the office. HR didn't respond to the request for unpaid leave but said she could continue working from home through the end of the week. Ms. Milman let her boss know, worked remotely until the end of the day, and everything seemed to be peachy.

Until the end of the day.

HR emailed a letter to Ms. Milman from Mr. Fieger, terminating her employment. The letter said,

You failed to come in to work on Monday and Tuesday and indicated that you were taking personal time off. You assured your supervisor . . . that you were going to come in on Thursday. Today, Thursday, you did not come into work and indicated that your child had a minor cold . . . . Today will be your last day on our payroll.

(Ellipses in court's decision.)

Whoa! That's harsh! Then, on March 23, Mr. Fieger followed up with another letter, saying that Ms. Milman "had no intention of coming into work"; refused to work because her "child had a cold"; and "[a]t that point, it was clear [she] had quit." (Brackets in court's decision.)

Ms. Milman sued the firm for FMLA retaliation, and the law firm moved to dismiss the lawsuit and even asked for sanctions. A federal judge ruled in favor of the firm (but denied its motion for sanctions), saying that Ms. Millman didn't allege that she was actually eligible for FMLA leave and therefore could not assert a claim for FMLA retaliation.


Ms. Milman appealed, and the Sixth Circuit panel found in her favor, which means that her FMLA retaliation lawsuit will go forward.

According to the majority opinion,

Milman's core claim is that she was fired for inquiring about and making a request to take FMLA leave, which she argues is protected activity under the FMLA. . . . [T]he issue is clearly cognizable .  . .. 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 the statutory entitlement . . . That view would . . . create an 'ask at your peril' approach [that] could deter employees, including eligible employees uncertain of the extent of their rights from taking the first step necessary to exercise their rights."

(Ellipses mine.)

Nor was it a defense that Ms. Milman didn't specifically mention "FMLA" when she asked for "unpaid leave." According to the decision,

Based on the circumstances outlined in her Complaint, Milman plausibly attempted to engage in the process contemplated under the [FMLA] when she requested unpaid leave due to her son's health and the growing pandemic. . . . The Firm had notice that Milman sought leave to care for her son who had recently been hospitalized with RSV, suffered continuing symptoms from that condition and, potentially, had contracted COVID-19. This knowledge gave rise to a duty for the Firm to, at minimum, engage in the communication required by the statute. . . . Instead, the Firm offered a work-from-home arrangement -- which Milman accepted -- and then terminated her after the first day for failing to 'come into work,' indicating that her 'child had a minor cold.'"

(Ellipses mine.)

The moral of the story? Even if an employee doesn't qualify for FMLA leave, and even if she doesn't specifically mention "FMLA," employers need to be careful to avoid retaliation (or even the appearance of retaliation) based on a request for leave.

As noted above, Ms. Milman filed her lawsuit, and the firm immediately moved to have the court throw it out. When a defendant asks for dismissal at that very, very early stage of the litigation, the court has to give the plaintiff the benefit of the doubt and assume that everything alleged in the lawsuit is true. Now that the case will go forward, the parties will engage in discovery, and, depending on what the evidence shows, it is possible that the firm will win in the end.

One last thing, and then I'll stop! This Sunday, February 5, will be the 30th anniversary of the signing into law of the FMLA. According to the Daily Mail (so you know it's true), this was the first piece of legislation signed into law by President Bill Clinton, who took office on January 20, 1993.

IMAGE CREDITS: Photo of my favorite cats, Zsa Zsa and Xavier, by me. Other images from flickr, Creative Commons license: Mona Lisa by FolsomNatural, "Thanks, COVID-19" by Mike Finn.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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