A federal appeals court on Wednesday reinstated a family and medical leave lawsuit filed by an attorney that ended when she sought unpaid leave to care for her 2-year-old son, who had a history of respiratory illness and was suffering from Covid-19–as symptoms.
Polina Milman, an attorney at Southfield, Michigan-based Fieger & Fieger PC, worked from home for four days in March 2020, then requested unpaid leave because her son’s condition did not improve, according to the ruling by the 6th US Circuit Court of Appeals in Cincinnati i Polina Milman v. Fieger & Fieger PC et al. Her job was terminated.
Milman filed suit in US District Court in Detroit, claiming her termination violated the FMLA and state law. The district court granted the company̵
7;s motion to dismiss the case on the grounds that Ms. Milman had failed to state a claim under the FMLA.The case was unanimously reinstated by a three-judge panel of the Court of Appeals in a ruling that included a concurring opinion. “Because Milman did not assert entitlement to the leave she requested, the (district) court determined that she had not engaged in protected activity under the FMLA and her retaliation claim failed,” the ruling said.
“Milman’s conduct was grounded in a legitimate exercise of the FMLA’s procedural framework and was therefore protected under the FMLA,” the ruling said.
The complaint’s allegations “make clear that in the face of a pandemic involving a novel respiratory disease (COVID-19), simultaneous recognition of federal and state executive orders, and an increasing number of COVID-19 cases, Milman believed that her symptomatic two-year-old son—who previously hospitalized for respiratory problems … may have contracted the disease.
“Faced with these facts, Milman made a request for unpaid leave to care for her son, a hallmark FMLA claim,” the ruling said when the lawsuit was reinstated and recalled for further proceedings.
A lawyer for Ms. Milman, Deobrah Gordon, of Deborah Gordon Law in Bloomfield Hills, Michigan, said in a statement: “This is a very important opinion that clarifies the scope of protected activity under the FMLA.
“An employee cannot be retaliated against simply for requesting FMLA leave, even if she did not take the leave. The request itself is protected.”
Lawyers for the law firm did not respond to a request for comment.
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