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A federal appeals court on Wednesday reinstated a Family and Medical Leave Act lawsuit filed by an attorney who was terminated when she sought unpaid leave to care for her 2-year-old son, who had a history of respiratory illness and was experiencing COVID-19-like symptoms.
Polina Milman, an attorney with Southfield, Michigan-based Fieger & Fieger P.C., worked from home for four days in March 2020, then requested unpaid leave because her son’s condition was not improving, according to the ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Polina Milman v. Fieger & Fieger P.C. et al. Her job was terminated.
Ms. Milman filed suit in U.S. District Court in Detroit alleging her termination violated the FMLA and state law. The district court granted the firm’s motion to dismiss the case on the basis Ms. Milman had failed to state a claim under the FMLA.
The case was unanimously reinstated by a three-judge appeals court panel in a ruling that included a concurring opinion. “Because Milman did not allege 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 action 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 when faced with a pandemic involving a novel respiratory illness (COVID-19), concurrent recognition by federal and state executive orders and a rising number of COVID-19 cases, Milman believed that her symptomatic two-year old son – who had a history of hospitalization for respiratory issues … may have contracted the illness.
“Faced with these facts, Milman made a request for unpaid leave to care for her son, a hallmark FMLA claim,” the ruling said in reinstating the lawsuit, and remanding it for further proceedings.
An attorney for Ms. Milman, Deobrah Gordon, of Deborah Gordon Law in Bloomfield Hills, Michigan, said in a statement, “This is very important opinion making clear the scope of protected activity under the FMLA.
“An employee cannot be retaliated against for simply requesting FMLA leave, even where she did not take the leave. The request itself is protected.”
The law firm’s attorneys did not respond to a request for comment.