New Laws Mean New Lawsuits – A Review of Claims Under the FFCRA

  • Sep 10, 2020
  • COVID-19
  • Laura I. Bernstein

When Congress passed the Families First Coronavirus Response Act, (FFCRA), we all knew that it would not take long to see some interesting new lawsuits springing up.  We were right – employers are facing an onslaught of litigation, primarily alleging that the employees were retaliated against for seeking and/or using the leave and sick pay provisions of the FFCRA.

While most of these cases have not yet been adjudicated or resolved, it is interesting to review their allegations to get a sense of where and how conflicts tend to arise.

Jones v. Eastern Airlines

In this Pennsylvania case, the employee, a single mother of an 11-year old, alleges that she was terminated as a result of requesting leave under the FFCRA in late March to care for her son whose school was closed due to COVID-19. The airline has filed a motion to dismiss, arguing that the FFCRA claim cannot proceed since the law did not become effective until April 1, after the employee requested and was denied her leave. Additionally, the employer contends that even if the FFCRA applies, the employee did not meet the eligibility requirements for FMLA at the time of her request.

Constance v. Hollybrook Golf and Tennis Club

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

The employee contends that after being ordered to quarantine by his doctor, he was denied Expanded Paid Sick Leave under the FFCRA and was forced instead to use his accrued PTO during the quarantine period.  He then claims to have been fired on the day of his return to work in retaliation for taking an FFCRA-qualifying leave.

This case settled in early September.

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

In another Florida case, the employee alleges that she was directed to take her daughter to the local YMCA after the child’s school was closed due to COVID-19.  She claims that when she declined to do so because it was too expensive, she was placed on an unpaid leave of absence.  The employee then sued for denial of her paid leave rights under the FFCRA, and alleged that forcing her into an unpaid leave was a constructive termination.

The employer’s position is that the employee resigned her employment or, in the alternative, that she was unprotected under the FFCRA because her child’s daycare provider was open and available so she did not 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 requesting to work from home to care for her son after his daycare facility was closed due to COVID-19. Initially, the firm instructed Milman to use PTO rather than work remotely. However, when the FFCRA was passed, she reached an agreement with Human Resources to work from home, but she was later terminated.

At various times, the spokesperson for the employer has been quoted as saying that 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, he could fire her at any time.

This should be an interesting case to follow given the apparent degree of animosity between the parties.

Saunders v. Gala North America, Inc.

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

The employer has not yet filed an answer so we do not know at this time what their response will be.

Pacitti v. Ricciardi Brothers Old City, Inc.

In another Pennsylvania case, a delivery driver alleges that he was approved to take FFCRA leave to care for his four children whose school had closed. However, when he sought to return from the leave after the end of the school year, he was told that his delivery position at the location to which had always reported was no longer available.  Instead, he was assigned to another location that was a two-hour round-trip drive from his home.  The employee resigned and is suing for retaliation and constructive termination.

McIntyre v. Midwest Geriatrics, Inc.

In this Nebraska case, Sherrie McIntyre claims that 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 that she was terminated because security footage showed that she was not wearing a mask while tending to the residents.  McIntyre alleges that masks were not available at her workplace at this time, and that other employees not wearing masks during the relevant time period were not fired.  She also claims that the employer told other employees and facility residents that she had exposed them to COVID-19.

McIntyre is suing for interference with her FFCRA leave rights and retaliation.

Bottom Line

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