I. Introduction

Employees have a right under the Family and Medical Leave Act (FMLA or the Act) to take a leave of absence if they or a close family member are suffering from a serious illness. In Milman v. Fieger & Fieger, P.C., the Sixth Circuit Court of Appeals recently clarified that an employee’s request for leave under the FMLA also constitutes a protected action. Further, the employee’s request is protected even if the employee ultimately is found to be unqualified for the requested leave.

Congress enacted the FMLA to balance the interests of employees in caring for their and their family members’ health with the interests of employers in maintaining a productive workplace.[1] The FMLA grants employees two substantive rights: (1) the right to take a necessary leave; and (2) the right to return to substantially the same employment after the leave is over.[2] Section 2615 of the FMLA lays out certain prohibited actions of an employer, including § 2615(a)(1), which prohibits an employer from interfering with the exercise or attempted exercise of an FMLA right and § 2615(a)(2), which prohibits discrimination against an employee who has exercised or attempted to exercise an FMLA right.[3] Conversely, however, employers are given the right to request information from the employee, including the right to request medical input regarding the employee’s justification(s) for the requested leave.[4]

II. Case Summary

In the instant case, Polina Milman was employed as an attorney at Fieger & Fieger PC (the firm). In March of 2020, Milman’s son was still recovering from a dangerous bout of Respiratory Syncytial Virus (RSV), which had resulted in nearly a week-long hospitalization and continued use of a nebulizer to address his respiratory issues. That month, a state of emergency was declared in response to COVID-19, and Milman wrote to a partner at the firm expressing concerns about her son’s vulnerable health in the face of the still relatively unknown virus. Milman requested permission to work remotely for the first part of the week out of concern for her son’s health. Her request was denied, so Milman used two of her available PTO days. That Tuesday, Milman’s son developed “a cough, runny nose, and gastrointestinal issues,” all of which were possible symptoms of COVID-19.

Milman affirmed to her supervisor that she would be returning to the office that Thursday, but reiterated concerns about her son’s symptoms. By Thursday morning, his symptoms had worsened, so Milman contacted the HR department requesting permission to stay home. The HR department responded with an offer allowing Milman to work remotely for the remainder of the week. Milman accepted that concession offer and continued working as normal throughout Thursday; however, by the end of the day, she received a termination letter citing her decision to work remotely without a valid justification as the basis for her termination.

Milman promptly sued the law firm, claiming that her termination violated the FMLA. The U.S. District Court for the Eastern District of Michigan granted the firm’s motion to dismiss Milman’s complaint, finding that Milman was required to show, as an initial threshold, that she was “entitled to FMLA leave” to support her claim.[5] The district court found that she was not entitled to FMLA leave because her son’s illness was not a “serious health condition.”[6] Milman appealed, arguing that her request for leave was protected by the FMLA and that the employer had taken improper retaliatory action against her for attempting to exercise her rights under the Act.[7]

III. Retaliation claims are protected by both §§ 2615(a)(1) and (a)(2).

The FMLA protects two types of claims: Entitlement/Interference claims and Retaliation/Discrimination claims.[8] Milman asserted a cognizable retaliation claim by alleging she was terminated for asserting or attempting to assert her FMLA rights.[9] In a departure from the district court, however, the Milman court found that both §§ 2615(a)(1) and (a)(2) of the FMLA cover retaliation claims.[10] The district court had found only § 2615(a)(2) to be applicable, because it explicitly prohibits discriminatory action against an employee for exercising or attempting to exercise FMLA rights.

However, the Milman court also found § 2615(a)(1) to be applicable, because it prohibits any interference with an employee’s FMLA rights. The Court found that retaliation against an employee for asserting or attempting to assert his or her FMLA rights deters potential claimants and therefore qualifies as interference.[11] Therefore, Milman’s retaliation claim falls comfortably within both §§ 2615(a)(1) and (a)(2).[12]

IV. The heart of the case: what is the scope of FMLA protection?

Prior to the Milman decision, it was not apparent whether the employee’s act of simply requesting FMLA leave was protected under the Act. The scope of employee actions protected by the FMLA was clarified by Milman to cover both the leave and the request. This step by the Sixth Circuit is in line with precedent in other circuits, which had already recognized protections for an employee’s notice of intent to take a leave.[13]

The first step towards garnering protection under the FMLA requires an employee to notify the employer of his or her request for leave, preferably 30 days before the leave but at least “as soon as practicable.”[14] The Milman court found that all the steps outlined in the FMLA must be protected in order to protect the employee’s right to necessary leave.[15] If the notification step itself was not protected, an employer can interfere with its employees’ ability to take FMLA leave by terminating or threatening to terminate any employee who makes a request — an effective deterrent for any would-be leave-takers.[16]

Consequently, an employee’s notice of a request for leave is protected, regardless of whether the employee is ultimately qualified for FMLA protection. An employee could be determined unqualified for several reasons, including an insufficient length of employment, an insufficient number of working hours the preceding year, or the determination that they or a family member are not suffering a truly severe illness.[17] However, the burden is not on the employee to know whether he or she is eligible for the protected leave before making a request. This “ask-at-your-peril” approach would deter many potentially eligible employees from attempting to take advantage of available leave.[18] The employee’s initial notice of request for leave is protected, regardless of whether he or she is ultimately qualified for that leave.

The district court had relied heavily on Branham v. Gannett Satellite Info. Network, Inc.[19] in determining that the employee needs to show eligibility for the FMLA leave in order to bring a claim against the employer for violating his or her FMLA rights.[20] However, the Milman court distinguished Branham because that employee already had taken a leave of absence before claiming a violation of her FMLA rights.[21] By contrast, Milman had merely requested a leave of absence; she never actually took the leave.[22] If an employee has already taken leave, then he or she must show that the leave was a protected right under the FMLA to support a claim that his or her rights were violated.[23] On the other hand, when an employee has not taken the leave, it becomes irrelevant whether the employee eventually would have been found eligible under the FMLA, because the initial step of giving notice is a protected action standing alone.[24]

V. What are employer’s responsibilities under the FMLA?

Because the onus is not on the employee to know whether he or she is entitled to FMLA protection before giving notice, the burden now falls on the employer to follow-up and obtain any additional information necessary to determine whether the employee satisfies the requirements of the FMLA.[25] Milman had given notice by requesting the leave and citing her son’s recent serious illness, the state of emergency created by COVID-19, and her son’s potential COVID-19 symptoms as justifications.[26] The firm then became responsible for obtaining any other information necessary to determine whether Milman qualified for rights under the Act.[27]

VI. Conclusion

Employers should extract two critical take-aways from Milman: (1) an employee’s notice of intent to exercise an FMLA right is a protected action in and of itself; and (2) once notice has been given, the employer is responsible for seeking any additional information necessary to verify whether the employee qualifies for FMLA protection. Employers should not take any adverse action against an employee who requests a leave due to their own or a family member’s serious illness, regardless of whether that employee is likely to meet the FMLA’s requirements, until it fully exhausts its inquiry regarding eligibility under the Act. The employer’s best option is to immediately seek any additional information necessary to ascertain whether the employee falls within the scope of the FMLA. At that point, the employer can assess whether to accept or deny the employee’s request for leave. The FMLA empowers employers to request medical certification and even a second or third medical opinion from other healthcare providers.[28] Employers should utilize this protective mechanism to evaluate whether the FMLA is applicable.

Scott Simmons is a member in the Labor and Employment Department in the Chattanooga office of Miller & Martin PLLC. He may be reached directly at Scott.Simmons@millermartin.com. Danyel Bigger, a rising third-year law student at Vanderbilt University Law School and a summer associate at Miller & Martin, assisted in the writing of this article.