The employee acknowledges that The Kroger Company is not a covered employer under the FFCRA, but claims that it held its amended policy out as providing the same protection.
A wrongful termination lawsuit filed in federal court in Indiana makes an interesting argument that The Kroger Company, even though it’s not a covered employer under the Family First Coronavirus Response Act (FFCRA), was nonetheless estopped from denying an employee 14 days of paid leave covering COVID-19-related self-isolation and symptoms under the company’s own policy, which was represented as aligned with the FFCRA. The complaint also alleges that the terminated employee, who worked at a distribution center, was entitled to FMLA protections.
The company allegedly represented that it had amended its ‘”Emergency leave Guidelines’ to cover COVID-19 related self-isolation and symptoms (in line with the protections afforded by the FFCRA).” The company also purportedly amended its attendance policy so that points associated with COVID-19 symptoms would be removed once “acceptable medical documentation” was provided.
COVID-19 symptoms and self-isolation. The complaint details the employee’s virtual hospital visit with COVID-19 symptoms and a doctors’ note excusing her from work that Kroger’s HR staff deemed inadequate. On a second virtual visit, the doctor’s note allegedly indicated a diagnosis, “URI vs. COVID-19 most likely URI [upper respiratory infection] at this time …” the note also excused the employee from work April 6-20, and said that the employee should “self-isolate for 14 days,” with the instruction “[d]o not return to work or public places during this time.”
The employee’s live-in boyfriend, who also worked at Kroger, was similarly advised in a doctor’s note to self-isolate for COVID-19 related reasons. Ultimately, the employee was purportedly fired for attendance points that had accumulated for the time she self-isolated because she had no vacation time to apply so she could “attend to her serious medical condition,” as the complaint characterized it. Her boyfriend, however, had vacation time to apply to his leave, and so was not fired.
FMLA violation. The employee contends that Kroger violated the FMLA because it failed to initiate a discussion with her about taking leave under that statute. “Defendant is a covered employer, and Plaintiff a qualified employee, under the FMLA, and therefore her need for time off work in excess of three days to attend to her serious medical condition entitled Plaintiff to protection of her job under the FMLA,” the complaint states. “Defendant’s actions when terminating Plaintiff were in direct violation of the FMLA.”
FFCRA estoppel. The employee also argues that Kroger failed to adhere to its own policy set forth in response to the COVID—19 pandemic, which “mirrors the FFCRA, Division E.” Accordingly, the company is “estopped from asserting that it was not a covered employer under the FFCRA, as it represented to its employees that they were entitled to the same protections as afforded by the FFCRA,” the employee contends.
The complaint seeks compensatory damages, reasonable attorney’s fees, and costs. It also alleges that Kroger’s actions were “knowing, intentional, willful, wanton, and in direct violation of Plaintiff’s federally protected rights pursuant to the FMLA and the FFCRA,” entitling the employee to liquidated damages.
The employee filed her lawsuit, Robtoy v. The Kroger Company, dba Peyton’s Northern Distribution Center, in the Northern District of Indiana, Fort Wayne Division; the case is No. No. 1:20-cv-00173.
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