Earlier this month, I told you about an attorney who claimed that her former employer wrongfully discharged her for refusing to violate a stay-at-home order.
Now, we’ve got another lawyer-plaintiff, this time claiming that his former employer fired him for taking FMLA leave when after contracted COVID-19.
But before I get into the particulars of this second lawsuit, I want to remind you that I’m going to be live today on Zoom at Noon EDT with David Mohl discussing the legal and business side of return to work. We’ll get into:
- employee health screening and accommodations;
- pending COVID-19 legislation; and
- your Q&A.
Go ahead and ask your hypothetical questions here.
We’ve got a few spots left. So, make sure to register here to reserve yours before they get filled.
Lawyer Lawsuit #2 – FMLA edition
According to the Complaint (courtesy of Law360 here), the plaintiff served as the Assistant General Counsel to a Pittsburgh-based company for several years, and all seemed good.
Until it wasn’t.
Allegedly, the company closed its offices in March when the pandemic hit and instructed all employees to work remotely. Around that time, the plaintiff got sick and later learned that he had COVID-19. Around that time, the plaintiff claims that he notified his employer about his diagnosis and requested time away from work to recover.
The Complaint states that from March 20-March 31, the plaintiff suffered from a serious health condition. It appears that he took some time off, but the plaintiff also alleges that he returned to working full-time remotely from March 28-March 30. On March 31, the plaintiff claims that he requested permission to work remotely from overseas, where he could continue to recuperate with his family – his wife’s family is from Eastern Europe — and work using his laptop, printer, and some fast Slovenian wi-fi.
At first, according to the plaintiff, the company consented. But, then, the company did a 180 and fired him, according to the plaintiff. And he claims that the firing violated his FMLA rights.
I told you! Look out for those FMLA lawsuits!
Now, I have no idea how this lawsuit will shake out. I see some deficiencies with the Complaint, namely:
- It is silent about whether the plaintiff worked at a location where the company employs 50 or more employees within 75 miles. (If not, the FMLA claims are DOA).
- I’m not sure how the employer may have interfered with the plaintiff’s FMLA rights. That is, it appears as though the plaintiff got all the leave he needed until he began working voluntarily.
But, if the plaintiff is genuinely FMLA-eligible, then the timing of the alleged firing seems suspicious, and that retaliation claim should ride for a while. Plus, I assume that the plaintiff will eventually amend the Complaint to add an ADA claim (discrimination, failure to accommodate) too after he exhausts his administrative remedies at the EEOC.
But for you, my friends, let’s look at the bigger picture.
- If you employ 50 or more employees, you’ll be handing out FMLA paperwork like candy over the next few months. COVID-19 is more likely than not a serious health condition. And if the employee is taking care of a loved one (parent, spouse, or child) with COVID-19, that triggers FMLA too. Maybe the employee is immuno-compromised, or fears coming back to work because of diagnosed mental health issues. Get that person some FMLA paperwork! (Even if the employee doesn’t say the letter F-M-L-A.)
- There may also be a duty to accommodate an employee with COVID-19, or some condition that makes him/her susceptible to COVID-19. While the EEOC has not confirmed that coronavirus is a disability, that’s not the hill you want to die defending. Instead, as with other accommodation situations, focus on whether your business can accommodate the employee without creating an undue hardship. Also, consider whether bringing the employee to work creates a direct threat to the employee or others. Possible accommodation include telework, transfer, an unpaid leave of absence, or reallocating non-essential job functions to other employees.
- And, of course, there’s the FFCRA. If you have fewer than 500 employees and an employee is entitled to paid leave under this new law, offer them paid leave, and get your tax credit.