Labor & Employment Law Daily Fevered nursing assistant sent home because of COVID and fired has no recourse
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Thursday, December 24, 2020

Fevered nursing assistant sent home because of COVID and fired has no recourse

By Brandi O. Brown, J.D.

Unbeknownst to her, the employer elected to be excluded under the healthcare provider exclusion of the Emergency Paid Sick Leave Act.

Although expressly disagreeing with its own result, a federal district court in Kentucky ruled that an employee fired after being sent home with a fever by her employer during the COVID-19 pandemic had no recourse under the EPSLA. Even though the employee had no notice that her employer had elected to exclude its health care providers from the Act’s coverage, that election prevented her from pursuing her claim. While the court found that equitable estoppel could apply under the Act, the employee did not show a definite misrepresentation of material fact. Her wrongful termination claim also failed and the employer’s motion to dismiss was granted (Valdivia v. Paducah Center for Health and Rehabilitation, LLC, December 14, 2020, Russell, T.).

Feverish and fired. In late March 2020, the employee, who had worked for two years as a CNA at a rehabilitation facility, became ill. When she went into work, she stopped as required to have her temperature checked. Her temperature was high and after a second test resulted in an even higher temperature of 100.1, she was told to go home. She received a call from the employer telling her that the absence would be unexcused until she provided a doctor’s note. She missed additional calls that day from her employer telling her to return to work for further assessment. The next day she went to the doctor and learned she did not have COVID. She texted a picture of her doctor’s excuse to her supervisor. The following day she was fired. She filed suit, alleging that her termination violated the Emergency Paid Sick Leave Act (EPSLA) and state law.

Pandemic legislation. Section 5102 of the EPSLA, enacted in response to the pandemic, provides that an employer shall provide paid sick time to employees who need leave because they are experiencing symptoms of COVID-19 and are seeking a medical diagnosis. However, the section also provides that an “employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.” The Act also requires employers to give employees notice of the Act’s requirements and includes a link to a model notice. However, the model notice does not reference the healthcare exclusion and the regulations did not address it. In fact, both the statute and regulations were silent on how employers must elect to exclude healthcare providers from coverage. Neither party denied that the employee was a health care provider as defined by the regulations.

Notice not required. Noting that there was no caselaw interpreting this specific issue due to the newness of the Act, the court focused on its statutory text. The statute requires employers to post a notice about the Act’s requirements, but the model notice provided by the Department of Labor did not reference the healthcare provider exclusion and the regulations refer only to the content of the model notice.

“Therefore, under the plain language of the notice statute, an employer is not required to notify employees of the exclusion,” explained the court. While the Labor Department had chosen to explicitly provide a process for election for those employers electing to use the small business exemption, it notably remained silent with regard to those employers that elected to exclude healthcare providers. Without ambiguity, the court explained, it had to “side with the plain language of the text” and conclude that the employer was not required to give notice and had properly elected the exclusion. To find otherwise, the court explained, it would have to add or infer requirements not found in the statute.

Nevertheless, the court noted that it “does not agree with this result” and opined that the “statute should explicitly require employers to notify their employees of their choice to make this election.” It explained that without such requirements, “employers may make retroactive choices that benefit them and prejudice their employees.”

Equitable estoppel. The employee also argued that the employer was estopped from firing her because she had taken time off work to seek a diagnosis based on the employer’s representation that she needed to do so in order to protect her job, citing cases recognizing that doctrine in the context of the FMLA. The purpose of the doctrine in that context, the court explained, was to prevent employers from making reasonable, though mistaken, statements to employees that the latter relied on to their detriment. It saw “no reason a similar result” would be undesirable under the EPSLA.

However, applying the equitable estoppel factors from the FMLA cases, the court found that the employee failed to show “a definite misrepresentation as to a material fact.” She alleged that she was told to go home because of her rising temperature, but she did not allege that she was told she would be paid or that she would be covered by the Act. Without such evidence, the court could not find the employer was estopped.

Wrongful termination. Finally, the employee alleged that she was discharged in violation of public policy. With regard to her argument that the policy was contained in state regulations, the employer argued that a regulation could not support a claim of wrongful termination. In response, the employee cited multiple cases that she argued expanded state law and allowed regulations to satisfy the “well-defined public policy” requirement for terminations against public policy.

However, the court explained, those cases did not relate to claims of wrongful termination and the employee did not point to any cases that applied regulations in that context. Rather, it noted, Kentucky courts continue to limit the at-will employment exception to statutory and constitutional provisions. With respect to the specific statutory provisions that the employee argued could also support her claim, she failed to argue how her termination violated them. Lastly, she argued that the state governor’s COVID-19 Executive Orders constituted evidence of a well-defined public policy, but there was no caselaw to support her argument. Even if they could be considered, there was no indication that their “primary purpose” was “to protect workers in the course of their employment.”

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