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Is an FMLA Leave Request a Protected Activity Even If the Employee Doesn’t Qualify for FMLA?

Warner Norcross & Judd LLP

Feb. 13, 2023
Recorded Online
Podcast

Steve Palazzolo returns with a new Law Shanty episode inspired by Warner Associate Daniel Brookins’ internal notes to Warner’s Labor and Employment Practice Group, highlighting a recent decision in Milman v. Fieger & Fieger, P.C. This case was initially dismissed by the district court holding that the employee’s retaliation claim could not stand because the underlying leave was not protected. However, upon appeal with the United States Court of Appeals for the Sixth Circuit, that decision was overturned, stating that an employee’s request for FMLA leave can constitute protected activity even if the leave request does not ultimately qualify for FMLA protection.

So what are employers to do? Steve sheds light on how employers should adhere to the FMLA’s guidance and how to protect against a retaliation claim.

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