On Wednesday, a unanimous Sixth Circuit reversed an employer’s 12(b)(6) judgment on an FMLA retaliation claim where the employee was terminated shortly after requesting an unpaid leave due to her infant son’s health even though she had not alleged that she was eligible for FMLA leave or that her son suffered from a serious health condition. Millman v. Fieger and Fieger, PC¸ No. 21-2685 (6th Cir. 1/25/23). The Court ultimately determined that “the FMLA protects the right of an employee to inquire about and request leave even if it turns out that she is not entitled to such leave.”
According to the Court’s opinion, shortly after the
commencement of the COVID pandemic on March 13, the employer law firm directed
its staff to work from home one day each week.
The plaintiff lawyer’s two-year old son recently been hospitalized with RSV,
a respiratory illness, was still using a nebulizer and his day care remained
closed. The plaintiff had five vacation
and 3 PTO days left in her time off bank. The firm owner denied her March 14 request to
work from home on March 16 and 17, but HR approved her request to use her PTO. When her direct supervisor asked if she
planned to return on March 19, she indicated that she planned to return, but
was concerned that her son’s day care was still closed and he had developed COVID
symptoms. On Thursday, her son’s condition worsened and she
contacted HR and offered to take unpaid leave to avoid returning to the office.
HR did not respond to her offer to take
unpaid leave or send her an eligibility notice or request for a medical
statement and instead authorized her to work from home for the remainder of the
week. She forwarded the email to her
supervisor and worked with him from home for the rest of the day. At the end of the day, HR sent her a letter
signed by the firm’s owner terminating her employment after she reported that
her son had a cold and she had not returned to work as promised. A week later, she requested her personnel
file and was sent another letter indicating that her actions showed that she
had no intention of returning to work, that she refused to work because her son
had a cold and they believed that she had quit. When she filed suit in August, the court
granted the employer’s motion to dismiss on the grounds that she had not
alleged that she was eligible for FMLA leave or that her son suffered from a
serious health condition.
The Court first concluded that FMLA retaliation claims may
be brought both under the interfere, restrain and deny statutory section and
the retaliation statutory section, but that the burden of proof for retaliation
claims did not change depending on which statutory section was cited. (The concurring opinion clarified that only
the interfere, restrain and deny section should support this type of retaliation
claim).
The plaintiff’s “core claim is that she was fired for
inquiring about and making a request to take FMLA leave, which she argues is
protected activity under the FMLA.” For
purposes of ruling on a motion to dismiss (when all factual allegations are
deemed to be valid), the Court presumed that she had alleged sufficient causation
and an adverse action. The only question
was whether she had engaged in a protected activity and that her employer knew
she had engaged in a protected activity when there were no factual allegations
indicating that she was entitled to or qualified for FMLA leave.
It makes sense that entitlement is a prerequisite to an FMLA retaliation claim in certain circumstances. In the more common circumstance, if an employee actually takes leave without being entitled to the leave, her action is beyond the scope of FMLA protection. Simply put, the FMLA protects leave that is taken only if it falls within the scope of entitlement; taking leave to which the employee was not entitled unambiguously falls outside the FMLA’s protections. . . .
This case presents an entirely different circumstance. [Plaintiff] never actually took leave; she only made a request for leave. . . . the question is whether the FMLA protects the right of an employee to inquire about and request leave even if it turns out that she is not entitled to such leave. . . .
. . . the steps of the process created by the FMLA—including the first step, i.e., the employee’s initial request for leave—must be protected activity under the Act. FMLA rights and the statute’s purpose would be significantly diminished if employers could fire an employee who simply took the required initial steps to access FMLA leave.
. . .
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. Without protection, employees would be discouraged from taking authorized initial steps—including preparing or formulating a request—to access FMLA benefits. We are not to impose nonsensical readings of a statute “if alternative interpretations consistent with the legislative purpose are available.”
. . .
. . . Starting with the regulation implementing § 2615(a), “[t]he FMLA prohibits interference with an employee’s rights under the law, and with . . . inquiries relating to an employee’s rights.”
. . . .
Thus, 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. That request, moreover, need not lead to entitlement in order to be protected. In this case, when her son began exhibiting symptoms associated with COVID-19, [Plaintiff] made a request to her employer for unpaid leave—following the first step of the FMLA’s process. The Firm, through Human Resources, then offered, and [she] accepted, a work-from-home arrangement for those two days and never responded to her request. [Her] action was grounded in a legitimate exercise of the FMLA’s procedural framework and was therefore protected under the FMLA.
Although the employer argued that the plaintiff had failed
to provide notice that she was exercising her rights under the FMLA, the Court
pointed out that the FMLA regulations make clear that employees do not need to
use the words, FMLA, to request leave under the FMLA. Rather, “the employee must provide enough
information for the employer to know that the leave she has requested
reasonably might fall under the FMLA. In addition, where leave is needed to
care for a family member, the employee must so indicate.”
“In any circumstance where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee or the spokesperson to ascertain whether leave is potentially FMLA-qualifying.” 29 C.F.R. § 825.301(a). Once an employer is put on notice that an employee seeks to use her FMLA leave, moreover, “the employer bears the obligation to collect any additional information necessary to make the leave comply with the requirements of the FMLA.”
In addition, the employer was clearly on notice because it initially
permitted her to work from home and its subsequent documentation cited her
request to not return to the office.
The Firm indicated that it was aware of [her] request based on its response: it offered an alternative accommodation to work from home for two days. The Firm had notice that [she] sought leave to care for her son who had recently been hospitalized with RSV, suffered continuing symptoms from that condition and, potentially, had contracted COVID-19. This knowledge gave rise to a duty for the Firm to, at minimum, engage in the communication required by the statute. The Firm neither sought to clarify [her] request nor did it attempt to obtain “a certification issued by a healthcare provider of . . . [her] son” to determine whether her request fell outside the scope of the Act. 29 U.S.C. § 2612(a). Instead, the Firm offered a work-from-home arrangement—which [she] accepted—and then terminated her after the first day for failing to “come into work,” indicating that her “child had a minor cold.” The Firm, thus, failed to exhaust any of its obligations in responding to [her] request. On these allegations, [she] provided proper notice to her employer that she sought FMLA leave and was acting pursuant to the FMLA’s prescribed procedures. The Firm was on notice of her protected activity.
Therefore, the dismissal was reversed and the case was
remanded to the trial court to proceed with discovery.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
