Sixth Circuit: Expanded Retaliation Protections for FMLA Leave


All FMLA Employers with KY, MI, OH, and TN Employees


January 25, 2023



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Quick Look

  • Employees requesting leave that may be covered under the FMLA are protected for exercising a leave request even if they are not eligible for FMLA leave.
  • Employers, not employees, are responsible for gathering the information required to determine whether leave complies with the FMLA.


In Polina Milman v. Fieger & Fieger P.C., the Sixth Circuit Court of Appeals ruled an employee’s request for unpaid leave under the Family and Medical Leave Act (FMLA) is protected activity and subject to protection against retaliation even if the employee was ineligible for FMLA leave. A request that raises the question of a potential right to FMLA leave is sufficient. Here, the employee was an attorney at a law firm and requested permission to work remotely due to the start of the COVID-19 pandemic. The employee was concerned about working in person as her son was vulnerable to infection and was exhibiting symptoms of COVID-19. She was denied her remote work request, so she then requested to take unpaid leave without mentioning the FMLA. Human Resources instead allowed her to work from home for a few days. When the plaintiff did not return to the office after the remote work allowance ended, she was terminated. She then sued for FMLA retaliation and state law claims.

In its ruling, the Court said that an employee did not have to make a specific request for leave in order to be protected from retaliation. It was enough that the request raised the question of a possible right to FMLA leave even if the employee ultimately was not eligible for FMLA leave. The employer, not the employee, has the burden of collecting enough information to determine whether the leave complies with the requirements of the FMLA. Here, the employee expressed sufficient legitimate FMLA concerns like needing to attend to her child’s health issues at the onset of the COVID-19 pandemic. These concerns are enough to raise the issue of whether the request reasonably may fall under the FMLA. Also, the employer’s offer of an alternative accommodation to work from home was an indication that the employer was aware of the plaintiff’s request. Employers should review their obligations under the FMLA and determine whether an employee qualifies for leave. Employers should also discuss any potential adverse actions contemplated against an employee requesting leave with their legal counsel.


Action Items

  1. Review procedures for responding to and managing leave requests.
  2. Have appropriate personnel trained on the requirements.
  3. Discuss potential adverse actions against employees requesting leave with legal counsel.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase