The 6th Circuit Clarifies Retaliation Under The FMLA

On January 25, 2023, the United States Court of Appeals for the Sixth Circuit held that an employee's notice of need for leave, regardless of whether the employee was ultimately entitled to the leave, was protected conduct under the Family and Medical Leave Act ("FMLA"). Milmen v. Fieger & Fieger, P.C., No. 21-2685 (6th Cir. Jan. 25, 2023). Accordingly, an employee has a claim for retaliation under the FMLA if an adverse action is taken against them because they requested leave, even if they are not entitled to that leave under the FMLA.

Background

Plaintiff, an employee of Fieger & Fieger (the "Firm"), made a request for unpaid leave to care for her two-year-old son and was terminated. The child had a history of respiratory illness and was experiencing symptoms resembling Covid 19.