Last month, the Sixth Circuit Court of Appeals ruled that a former employee may proceed with her lawsuit alleging the employer illegally retaliated against her by terminating her employment for requesting leave under the Family and Medical Leave Act (FMLA), even if she wasn’t entitled to such leave. Milman v. Fieger & Fieger, P.C., 58 F.4^th 860 (6^th Cir. 2023).

Initially, a lower court granted the employer’s motion to dismiss the case, arguing that since the former employee did not assert that she was entitled to leave, she could not claim unlawful retaliation.

A retaliation claim under the FMLA involves four elements:

1. Employee engaged in protected activity;
2. Employer knew the employee engaged in protected activity;
3. Employer took an adverse action against the employee; and
4. There was a causal connection between the protected activity and the employment action.

Protected Activity

In this case, the primary issue before the Sixth Circuit was what falls under the scope of “protected activity” under the FMLA, specifically, whether the former employee’s request for leave was a protected activity regardless of whether she was entitled to such leave.

The Sixth Circuit held that, “the scope of protected activity under the FMLA starts with the first step contemplated under the Act’s procedures: a request made to the employer.” The court went on to clarify, “that request, moreover, need not lead to entitlement in order to be protected.”

Notice to Employer

The employer also argued that even if a request for FMLA leave could be protected activity, the employee in this case did not provide requisite notice.

An employee does not have to expressly state they are requesting FMLA leave, but must provide enough information for the employer to know the requested leave may fall under the FMLA’s protection. If the employer does not have enough information, “the employer should inquire further of the employee or the spokesperson to ascertain whether the leave is potentially FMLA-qualifying.” 29 C.F.R. § 825.301(a).

In this case, the employer was aware that the employee requested leave to care for her son who had been recently hospitalized with a respiratory issue and was exhibiting symptoms of COVID-19. The court ruled this was sufficient notice to the employer that the employee was requesting FMLA leave.

Takeaway

While the Sixth Circuit is not binding on Hawaii employers, employers covered by the FMLA should ensure all supervisors and managers (i.e., people to whom employees are likely to make leave requests) are trained to identify potential requests for FMLA leave. Such requests should not be dismissed simply because the employee may not be eligible for FMLA leave, and employers should understand when they have an obligation to inquire further to verify the employee’s eligibility.