An Employee Is Protected by the FMLA, Even If the Requested Leave Did Not Actually Qualify.


The Family and Medical Leave Act protects employees who request unpaid leave for family illness, even if the request does not lead to actual FMLA leave, according to the U.S. Court of Appeals for the Sixth Circuit.

In Milman v. Fieger & Fieger, P.C., at the beginning of the COVID-19 pandemic, an attorney took paid leave, followed by request for unpaid leave, due to the closure of her child’s daycare and the fact that her son, who had respiratory issues, had developed symptoms resembling COVID-19. She was then terminated on the same day as her request for failing to come in to work because of her child’s “minor cold.” She sued for violation of the FMLA, on the grounds that she was subjected to retaliation for attempting to exercise . The employer argued that she was not actually entitled to FMLA leave since she did not establish that her son suffered from a serious health condition under the FMLA, and therefore was not protected by the law.

The Sixth Circuit, however, rejected the employer’s argument. The FMLA protects employees from retaliation for attempting to exercise their FMLA rights. The Sixth Circuit acknowledged that where an employee actually takes leave to which they are not entitled under the FMLA, it is beyond the scope of the FMLA’s protection. However, the Sixth Circuit found that the FMLA protects the right of an employee to inquire about and request leave, even if she is not actually entitled to the requested leave. This is because the FMLA, as part of its procedural framework, first requires employees to put their employers on notice of their desire to use unpaid leave by making a formal request. Thus, this initial request for leave, in the Sixth Circuit’s view, “must be protected activity” under the FMLA. Any other interpretation could result in rendering the employee unprotected during the first step in the process, which would discourage employees from taking such an authorized initial step.

In finding an employee’s notice of need for FMLA leave to be protected conduct under the FMLA, the Sixth Circuit joins several other federal Courts of Appeals. Employers should be aware that they should not take adverse action against an employee for requesting FMLA leave (or leave that could potentially qualify for FMLA), even if they believe the employee is not actually entitled to such leave.