Does the FMLA protect ineligible employees who inquire about taking FMLA leave?


Near the beginning of the pandemic, an employee requested unpaid leave to care for her two-year-old son—a child with a history of respiratory illness experiencing symptoms resembling COVID-19. But she never ended up taking FMLA leave.

Instead, she used PTO on Monday and Tuesday. The next day (Wednesday) was a scheduled work-from-home day. Meanwhile, the son’s symptoms worsened, and on Thursday, the employee asked to work from home on Thursday and Friday. HR approved the request. However, later on Thursday, the company changed its tune. HR emailed the employee a termination letter, signed by her boss, indicating that the employer had decided to fire her because she didn’t report to the office on Thursday.

The employee, an attorney at a law firm, then became a plaintiff and sued her former employer for FMLA retaliation.

But, the case didn’t get far.

The lower court concluded that the plaintiff had failed to state a claim on which relief could be based because the law required her to prove entitlement to FMLA leave to sustain her retaliation claim, where she requested unpaid leave but did not actually take any leave.

So, the plaintiff appealed the lower court’s decision to the Sixth Circuit Court of Appeals.

The FMLA prevents an employer from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. It is also unlawful for employers to “discriminate against any individual for opposing any practice made unlawful.”

What protections does the FMLA grant employees who request leave, regardless of whether they are eligible for or use it? The Sixth Circuit answered with a hypothetical situation:

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

It would make no sense for the regulations to contemplate such a discussion as part of the FMLA’s procedural framework, if employers may simply fire any employee who turns out not to qualify. 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.

Here, the plaintiff’s request to stay home with her sick child was consistent with an FMLA leave request. The firm, through Human Resources, then offered, and the plaintiff accepted, a work-from-home arrangement instead. Nonetheless, the plaintiff’s action “was grounded in a legitimate exercise of the FMLA’s procedural framework and was therefore protected under the FMLA.”

While your mileage may vary because this decision only binds employers within the Sixth Circuit, other courts have concluded the same. And not that you would terminate anyone for inquiring about FMLA leave, but decisions like these showcase the breadth of the protections that the FMLA affords.

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