Labor & Employment Law Daily LPN advances claim she was fired for requesting paid FMLA leave after contracting COVID
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Thursday, November 5, 2020

LPN advances claim she was fired for requesting paid FMLA leave after contracting COVID

By Kathleen Kapusta, J.D.

In moving to dismiss, her employer argued she was not entitled to leave under the FMLA or the Emergency Family and Medical Leave Expansion Act.

A nursing and rehabilitation center lost its bid to dismiss a former LPN’s FMLA retaliation claim alleging she was fired for requesting paid FMLA leave after she contracted COVID-19 at work. Noting that the employee alleged she was exposed to COVID-19 in April and May, contracted the disease, requested FMLA leave, and was fired in May, a federal district court in Rhode Island found that she pleaded facts sufficient to support a prima facie case at this stage of the litigation (Gomes v. Steere House, November 2, 2020, McConnell, J., Jr.).

The employee began working for Steere House as a Licensed Practical Nurse in August 2018. At some point in April and May 2020, she alleged, she was exposed to COVID-19 on the job. She became ill in and was unable to go to work “for a period of time.” During that time, she alleged, she requested FMLA and was fired in late May. She subsequently sued for retaliation in violation of the FMLA.

FFCRA. According to the employee, she was entitled to FMLA benefits under the Families First Coronavirus Response Act (FFCRA), which, observed the court “was enacted to give workers affected by COVID-19 the opportunity to obtain paid leave.” While the FFCRA contains two acts providing for relief—the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Act (EFMLEA)—only the EFMLEA, amends the FMLA. The EPSLA does not amend an existing statute, the court pointed out, and its provisions are tied to the FLSA.

EFMLEA. The employee did not claim she had a right to leave under the EFMLEA, said the court, noting that it applies only to employees who are unable to work because they need to take care of a child “whose School or Place of Care has been closed, or whose Child Care Provider is unavailable, for reasons related to COVID-19.” Instead, she argued, she was entitled to FMLA leave under the EPSLA, which provides paid leave for workers who contract the COVID-19 virus. However, the court pointed out, because the EPSLA has no connection to the FMLA and the employee did not state any facts suggesting she was qualified for FMLA leave under the EFMLEA, “it is apparent that she did not qualify for FMLA benefits.”

FMLA retaliation. Turning to whether she sufficiently stated facts to satisfy the first element of an FMLA retaliation claim—that she availed herself of a protected right under the Act—the court explained that it depends on whether she was eligible for FMLA. Here, the court cited the First Circuit’s 2013 decision in McArdle v. Town of Dracut/Dracut Public Sch., in which the federal appeals courts stated “We are not convinced that an employee who is ineligible for FMLA leave can never bring a retaliation claim.” Noting that the employee alleged the decision to terminate her was made in retaliation for having invoked her rights under the FMLA, the court found this sufficient at this stage to show she availed herself of FMLA rights by requesting paid leave under the Act.

Causal connection. As to whether she sufficiently alleged a causal connection between her leave request and her termination, the court pointed out that she stated she was exposed to the virus during April and May 2020 and was terminated on May 22 after asking for paid leave. This was enough, said the court, at this stage of the litigation to support the causality element of her claim. Accordingly, the court denied her employer’s motion to dismiss.

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