With 14 months having passed since the Families First Coronavirus Response Act (FFCRA) took effect, the number of decisions by U.S. District Courts relating to claims arising from violations of that law is increasing. The arguments made by employers and employees in these cases, and how courts have addressed those arguments, can provide valuable insight to employers facing similar claims.
In a decision issued on May 28, 2021, a federal court in Missouri considered an employer’s argument that an employee could not recover back pay, front pay or punitive damages arising from an FFCRA retaliation claim. The employer argued that FFCRA regulations incorporated regulations arising from the Fair Labor Standards Act which allowed recovery of “lost wages,” and thus the employee could only recover minimum wage and liquidated damages. The court disagreed with the employer and found that, while “lost wages” is not defined under the FLSA, it is an open-ended term which could include back pay and front pay. The court did conclude, however, that punitive damages were not recoverable in an FFCRA retaliation claim.
An employer’s qualification for the “small employer” exemption to the FFCRA, applicable to employers with fewer than 50 employees, may not be enough to support dismissal of a complaint. One Florida employer argued that the claim against it should be dismissed because “it would qualify for an exemption” from the FFCRA’s leave requirements because it employed fewer than 50 people and that enforcement of the law against it would jeopardize its viability as an ongoing business. The court denied the motion to dismiss because the complaint did not include allegations that would demonstrate that the employer had taken the statutorily required steps to qualify for the exemption or that it qualified for the exemption. Significantly, this decision does not foreclose an employer from demonstrating, in an early motion for summary judgment, that there is no dispute of material fact that it had made the necessary determination that it was eligible for the exemption.
In a Kentucky case, a federal court granted an employer’s motion to dismiss because the complaint did not allege that the quarantine instruction or the employee’s other communication with the employer at the time of the leave request included a proposed end to the leave. Furthermore, the quarantine instruction relied on by the plaintiff was signed by a registered nurse who did not come within the statute’s definition of “health care provider,” and the notice did not include the employee’s name because it was issued to the employee’s spouse, though it was to apply to the entire family. The lesson here is that employers faced with FFCRA claims should carefully go back and re-examine all documentation submitted by an employee in support of their request for leave.
In another Florida case, an employer argued that its termination of its employee, who generally worked as many hours as needed, while he was awaiting the results of a Covid test could not serve as a basis for recovery because it would not have had work for him even if he was available due to a reduction in its workforce caused by Covid. The court denied the employer’s motion for summary judgment, concluding that even though it was undisputed that the employer had reduced its workforce, there were still issues of fact as to whether the employee would have been given some work had he not been terminated. The take-away from this case is that an employer that plans to argue that an employee would have been terminated for reasons other than FFCRA-protected conduct must be prepared to support that argument with specific, detailed evidence.
At Luchansky Law, our lawyers can provide valuable advice and representation to employers facing FFCRA claims. Please give us a call at 410-522-1020 if we can be of service