The 6th Circuit Clarifies Retaliation Under the FMLA

On January 25, 2023, the United States Court of Appeals for the Sixth Circuit held that an employee’s notice of need for leave, regardless of whether the employee was ultimately entitled to the leave, was protected conduct under the Family and Medical Leave Act (“FMLA”).  Milmen v. Fieger & Fieger, P.C., No. 21-2685 (6th Cir. Jan. 25, 2023).  Accordingly, an employee has a claim for retaliation under the FMLA if an adverse action is taken against them because they requested leave, even if they are not entitled to that leave under the FMLA.


Plaintiff, an employee of Fieger & Fieger (the “Firm”), made a request for unpaid leave to care for her two-year-old son and was terminated. The child had a history of respiratory illness and was experiencing symptoms resembling Covid 19.

The U.S. District Court dismissed the plaintiff’s FMLA retaliation claim concluding that because plaintiff was not entitled to FMLA leave, she could not state a plausible retaliation claim under 6th Circuit precedent. Plaintiff, on appeal, argued that the District Court erred in concluding that she was required to prove entitlement to FMLA leave to sustain a retaliation claim, where she requested unpaid leave but did not actually take any leave. The Firm contended that the 6th Circuit precedent required entitlement to leave to be engaged in protected activity under the FMLA. The 6th Circuit did an extensive analysis of the provisions in the FMLA and an analysis of its previous decisions.

The 6th Circuit recognized that Courts of Appeals in other circuits treated an employee’s notice of need – regardless of whether the employee was ultimately entitled to leave – as protected conduct. The 6th Circuit concluded that the scope of protected activity under the FMLA starts with the first step contemplated under the FMLA’s procedures:  a request made to the employer. Moreover, that request need not lead to entitlement to be protected. The 6th Circuit further clarified that an employee does not have to expressly assert their right to take leave as a right under the FMLA to trigger its protections, but the employee must provide enough information for the employer to know that the leave they have requested reasonably might fall under the FMLA. The 6th Circuit further noted that, in general, if an employer lacks sufficient information about an employee’s reason for taking leave, it should inquire further to ascertain whether the employee’s leave is potentially FMLA–qualifying.

Take Away

Employers should take their obligations under the FMLA seriously. Failure to do so may lead to a retaliation claim, even if the employee would not otherwise be entitled to FMLA.

Related Services:

Employee Benefits | Labor & Employment

About the Author:

Tim Howlett is a Member in Dickinson Wright’s Detroit office. His practice involves counseling clients on labor and employment issues and litigation. Tim can be reached at 313-223-3662 or and you can access his bio, here.