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  • Employers Facing ‘Onslaught’ of New Litigation Under FFCRA

    How long did it take most of us to feel we had heard enough of the phrase “out of an abundance of caution…” when we entered the COVID era earlier this year?  Well, in spite of the tired cliché that it quickly became, it really was an important precursor to the decision-making process HR and business professionals had to go through as they guided their organizations through the crisis.

    Over the past seven months our Helpline has fielded, (literally) thousands of calls from members addressing every possible angle of employer challenges brought on by the pandemic.  Each question brings its own set of complexities and uniqueness and rarely is there a quick, templated response.  Consequently, it has always been top-of-mind that the pandemic would lead to a tidal wave of employment-related lawsuits, thus justifying the “abundance of caution” approach.  And, now we can confidently conclude that we did not over-estimate this!

    Please continue to our blog to read more about some of the critical litigation that has come up as a result of the pandemic and the federal response through the FFCRA.  As expected, this addresses retaliation, FMLA, Paid Sick Leave, mask-wearing and more.

    When Congress passed the Families First Coronavirus Response Act (FFCRA), we all knew it wouldn’t take long for some interesting new lawsuits to spring up. We were right—employers are facing an onslaught of litigation primarily alleging they retaliated against employees for seeking and/or using the FFCRA’s leave and sick pay provisions. While most of the cases haven’t yet been adjudicated or resolved, it’s helpful to review the allegations to get a sense of where and how the conflicts tend to arise.

    Jones v. Eastern Airlines

    In this Pennsylvania case, Stephanie Jones, a single mother of an 11-year-old boy, alleges she was terminated for requesting FFCRA leave in late March to care for her son, whose school was closed because of COVID-19. The airline has filed a request to dismiss the case, arguing:

    • The FFCRA claim can’t proceed because the law didn’t become effective until April 1, after Jones requested and was denied her leave; and
    • Even if the FFCRA applies, she didn’t meet the eligibility requirements for Family and Medical Leave Act (FMLA) leave at the time of her request.

    Constance v. Hollybrook Golf and Tennis Club

    Randy Constance, the maintenance supervisor at a Florida country club, contends he told his supervisor on March 27 he was experiencing COVID-19 symptoms and was going to take time off from work to get tested. After receiving positive test results, he informed the general manager (GM) and recommended the other employees get tested. The GM allegedly then directed him not to tell anyone else in order to avoid “chaos.”

    After a doctor ordered Constance to quarantine, he says he was denied expanded paid sick leave under the FFCRA and forced instead to use his accrued paid time off (PTO). He claims the employer fired him on his first day back at work in retaliation for taking the FFCRA-qualifying leave. The case was settled in early September.

    Donohew v. America’s Insurance Associates, Inc., et al.

    In another Florida case, Elizabeth Donohew alleges she was directed to take her daughter to the local YMCA after the child’s school was closed because of COVID-19. When she declined to do so because it was too expensive, she claims she was placed on an unpaid leave of absence.

    Donohew then sued for denial of her paid leave rights under the FFCRA and also alleged that forcing her into an unpaid leave was a constructive termination. The employer argued:

    • Donohew resigned her employment; or
    • The FFCRA didn’t protect her because her child’s daycare provider was open and available, so she didn’t need to be off work.

    Milman v. Fieger and Fieger

    In this Michigan case, attorney Polina Milman claimed her law firm fired her in retaliation for asking to work from home to care for her son after his daycare facility was closed because of COVID-19. Initially, the firm instructed her to use PTO rather than work remotely. When the FFCRA was passed, however, she reached an agreement with HR to work from home, but she was later terminated.

    At various times, the employer’s spokesperson has been quoted as saying Milman was “a terrible employee who had cleared out her desk the week before and had no intention of coming back to work” and that the claim is “nonsense” and, as an at-will worker, she could be fired at any time.

    Given the apparent degree of animosity between the parties, the case should be an interesting one to follow.

    Saunders v. Gala North America, Inc.

    This case was just filed in a Virginia federal court. Matthew Saunders and his fiancée both worked for the company. The fiancée tested positive for COVID-19 and was instructed to self-quarantine. After Saunders began showing symptoms, he also was ordered to quarantine. He alleges that when he reported his diagnosis to the company, he was terminated.

    The employer hasn’t filed an answer, so we don’t know yet what its response will be.

    Pacitti v. Ricciardi Brothers Old City, Inc.

    In another Pennsylvania case, delivery driver Gary Pacitti alleges he was approved to take FFCRA leave to care for his four children whose school had closed. When he sought to return from the leave after the school year ended, however, he was told his delivery position at the location to which had always reported was no longer available.

    Instead, Pacitti was assigned to another location that was a two-hour round-trip drive from his home. He resigned and is suing for retaliation and constructive discharge.

    McIntyre v. Midwest Geriatrics, Inc.

    In this Nebraska case, Sherrie McIntyre claims she tested positive for COVID-19 after being exposed by a resident of the assisted-living facility where she worked. She alleges that when she informed her employer, she was told she was terminated because security footage showed she wasn’t wearing a mask while tending to the residents.

    McIntyre claims (1) face coverings weren’t available at her workplace at the time, and (2) other employees not wearing masks during the relevant time period weren’t fired. She also claims the employer told other employees and facility residents she had exposed them to COVID-19. She is suing for interference with her FFCRA leave rights and retaliation.

    Stay Tuned

    It will be interesting to see what trends might emerge as the above cases (and others like them) work their way through the courts.

    Article courtesy of our content partners BLR.  Author Laura I. Bernstein is an attorney with Felhaber Larson in Minneapolis, Minnesota..