Geoffrey Fieger is known for being a tough litigator and plaintiff’s attorney. However, his firm lost in a Family and Medical Leave (FMLA) case decided by the Sixth Circuit Court of Appeals last week. The case involved one of his female attorneys requesting unpaid leave to care for her 2-year-old son that she feared had contracted COVID and already suffered from respiratory illness. Before she could formalize the request and provide the necessary FMLA supporting information, Fieger & Fieger law firm fired her.

The employee filed her FMLA retaliation claim in the Eastern District of Michigan. The District Court ruled in favor of Fieger’s law firm stating that she was not eligible for FMLA leave because she had “failed to argue whether she was entitled to [FMLA] leave and she had not alleged any facts to support her claim her son had a ‘serious health condition’ creating entitlement to the FMLA leave.”

The fired attorney appealed the lower court’s decision arguing that she was wrongly fired for inquiring about and making a request to take FMLA leave – a violation of the no retaliation Secs. 2615(a) (1) & (2) of the FMLA. In a case of first impression, that of bringing a lawsuit under the FMLA for retaliation before she may have even been entitled to the leave, the Sixth Circuit stated that the act of termination of employment that resulted after she made an inquiry about FMLA and did not request did fall within the purview FMLA Section 2615(a)(1).

The Sixth Circuit reasoned that “without protection, employees would be discouraged from taking authorized initial steps – including preparing or formulating a request – to access FMLA benefits.” Therefore, the Court, ruling along the lines that other Appeals Courts have, held “notice of need – regardless of whether the employee was ultimately entitled to the leave – is protected conduct.” 

Here the employee emailed a partner at the Firm to “discuss her concerns about COVID-19 exposure and to make a request to work from home because her child’s daycare was closed due to COVID-19.” She followed up that correspondence with another email to the same partner stating she had concerns about her son’s heightened vulnerability to COVID. The partner at that point responded he could not grant work from home requests and to make the request directly to Geoffrey Fieger, which she did. Communications back and forth from the Plaintiff and various parties and the firm ensued. Plaintiff worked from home during that week. On Thursday she was informed she was no longer employed due to her taking time off.

Fieger maintained that FMLA leave was not requested and therefore no retaliation could have been taken. The Sixth Circuit held the fact that FMLA would have protected her impending leave, which allowed the Plaintiff to state the claim of retaliation under the Act.

This case provides employer guidance around employees’ protection from retaliation from the very start of a possible FMLA leave request.

ASE Connect

ASE provides resources and tools to comply with the Family Medical Leave Act.

Courses

Family and Medical Leave Act (FMLA)
September 27, 2023 – Troy, MI
9:30 a.m. – 12:30 p.m.
Register
This course provides guidance on how to recognize FMLA notice and administer the law. Participants will discuss how to update company policy and answer employee questions relating to the Family and Medical Leave Act (FMLA).

FMLA: Intermittent Leaves
April 19, 2023 – Troy, MI
1:00 p.m. – 4:30 p.m.
Register
This class looks at the more complex compliance requirement of FMLA and addressing requests for intermittent leave under the law Next classes

Resources

ASE also has FMLA compliance tools in the ASE Member Dashboard under My Resources. In the CCH HRAnswersNow library dashboard page > Tools > FMLA-ADA Leave Advisor. And the FMLA Advisor in the Compliance Apps located in the Zywave HR Services Suite.

If you are having trouble finding or using these valuable research tools or would like to talk to someone directly about FMLA or any other employment compliance issues contact the ASE HR Hotline at (248) 223-8057 or [email protected]

Source: Polina Milman v Fieger & Fieger PC No.21-2685 (1/25/2023)