No retaliation ever for invoking FMLA rights--even if employee may be ineligible.

• Author: Hyman, Jon

The 6th Circuit revived the FMLA retaliation claim of an attorney fired immediately after she requested unpaid leave to care for her two-year-old child at the start of the COVID-19 pandemic.

In mid-March 2020, Polina Milman, an attorney working at the Fieger & Fieger law firm in Michigan, requested permission first for unpaid time off, and then to work remotely, to care for her two-year-old son, who was exhibiting COVID symptoms and was already vulnerable because of a previous bout of respiratory syncytial virus, or RSV. The firm initially granted her work-from-home request.

On her second remote workday, however, she received a termination letter, stating that she had refused to work because her "child had a cold" and "it was clear [she] had quit."

Milman claimed that the firm unlawfully fired her for inquiring about taking FMLA leave.

Fieger & Fieger argued that it could not have retaliated against her because she never actually took any leave under the FMLA.

The 6th Circuit Court of Appeals sided with Milman, writing:

"Suppose that an employee, intending to exercise her FMLA rights, meets with her employer and asks questions concerning her FMLA rights, then is fired for doing so. Concluding that no FMLA violation could occur if it turns out that the employee is not entitled to leave would render the employee unprotected during the step required to initiate the FMLA's process...