A significant clarification was recently made by the United States Court of Appeals for the Sixth Circuit, regarding retaliation under the Family and Medical Leave Act (“FMLA”). As per the verdict given on January 25, 2023, an employee’s notice of need for leave, even if the employee was not ultimately granted the leave, is deemed as protected conduct under the FMLA (Milmen v. Fieger & Fieger, P.C., No. 21-2685, 6th Cir. Jan. 25, 2023).
Put differently, if an employer takes adverse action against an employee for merely requesting leave under the FMLA, irrespective of whether this leave was granted or not, the employee can claim retaliation under the FMLA. This decision by the 6th Circuit provides additional protection under the FMLA for employees who express a need for leave.
While this also clearly complicates the decision-making process for employers when it comes to dealing with leave applications, it strengthens the employee’s right to request leave without fear of retaliatory actions. For legal practitioners advising corporations, understanding the implications of this clarification is paramount to avoid legal complications and maintain integrity in their clients’ HR practices.
This verdict adds an important nuance to the interpretation of the FMLA, making it all the more important for both employers and employees to understand their rights and responsibilities under the Act.