Pension & Benefits News Detention center employee failed to allege she sought leave under the EFMLEA
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Wednesday, October 21, 2020

Detention center employee failed to allege she sought leave under the EFMLEA

By Pension and Benefits Editorial Staff

An employee who declined to return to work during the early stages of the COVID-19 pandemic after expressing concerns that the lack of COVID-19 protections could place her or her family at risk, failed in her claim that she was unlawfully denied leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA). A federal district court concluded that the employee’s discharge was not unlawful because her complaint did not allege that she actually sought EFMLEA leave. Moreover, the court noted that the regulation governing leave under the EFMLEA took effect after the events alleged in the complaint took place, so no exclusion for emergency responders governed in this case.

Ordered to stay home. The employee worked as a substance abuse counselor at a detention center. Her job required that she meet with up to 25 inmates at a time to conduct a residential counseling program. In mid-March 2020, during the COVID-19 pandemic, the Kentucky governor declared an emergency. The employee and her colleagues were ordered to stay home from work between March 18 and March 30, 2020.

Before the return date, fellow counselors suggested that appropriate precautions were not being taken at the facility. The employee requested more information from a facility official, who indicated that precautions had been taken and that work would continue as normal. After returning to work for one day on March 30, the employee stayed home due to illness the following day. She also expressed concerns that lack of COVID-19 protections could place her or her family at risk. The employee stated that she was not resigning, but that she could not work in unsafe conditions.

In an exchange of emails with the official over the next few days, the employee asserted that she was "only asking for precautions and steps to be taken not to just not work. I will not work until those are taken." On April 1, the employee was discharged.

FMLA claims. The employee filed suit alleging FMLA interference and retaliation, and wrongful discharge under state law, among other claims. The employer responded with a motion to dismiss.

The court observed that defining the employee’s claims required it to sort through the labor provisions of the recently-enacted Families First Coronavirus Response Act (FFCRA). To date, only two federal courts have addressed those provisions, Kofler v. Sayde Steeves Cleaning Services, Inc., and State of New York v. U.S. Department of Labor.

In this case, the employee alleged violations of the FFCRA’s family and medical leave provisions. One division of the FFCRA contains the Emergency Family and Medical Leave Expansion Act (EFMLEA). The EFMLEA temporarily amends the FMLA to entitle certain employees to 12 weeks of leave per year "because of a qualifying need related to a public health emergency," 29 U.S.C. § 2612(a)(1)(F).

An employee has a qualifying need if: the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age if the school or place of care has been closed, or the child care provider is unavailable, due to a public health emergency, Section 2620(a)(2)(A). The requisite "public health emergency" must be related to COVID-19, Section 2620(a)(2)(B).

Paid sick leave. The employee’s complaint also referenced the Emergency Paid Sick Leave Act (EPSLA), which is a separate provision with enforcement provisions tied to the FLSA. The EPSLA lists six circumstances related to COVID-19 that could trigger paid sick time.

School closure. The employee alleged only violations of the FMLA as amended by the EFMLEA. As the employee did in this case, employees may file civil actions for violations, 29 U.S.C. § 2615. But Section 2615 enforces only the provisions of the EFMLEA, not the EPSLA. Thus, the employer’s liability could only stem from her right to take leave to care for a school-aged son or daughter whose school had closed due to COVID-19.

Application of the EFMLEA. As an initial matter, the court observed that the parties did not address whether the provisions of the EFMLEA were in effect at the times alleged in the employee’s complaint. The measure was signed into law on March 18, 2020, and its effective date was to be "not later than 15 days after the date of enactment of this Act"—April 2, 2020. According to the Department of Labor, its provisions "became operational on April 1, 2020, effective on April 2, 2020." Notices issued to employers by the Wage and Hour Division state that the "provisions will apply from April 1, 2020 through December 31, 2020."

The employee’s amended complaint asserted that she was terminated on the morning of April 1. All other events were claimed to have occurred before that date. Based on those allegations, the court concluded that it was an open question whether the EFMLEA’s provisions applied to her. The employer could not be liable for any "interference with rights" under 29 U.S.C. § 2615 if the rights the employee asserted never applied to her employment. But because the employer had not argued that the employee’s claims were barred on these grounds, the court declined to decide the issue here.

Emergency responders. Pursuant to the EFMLEA, the Secretary of Labor promulgated a regulation which "exclude[s] certain . . . emergency responders from the definition of eligible employee," 29 U.S.C. § 2620(a)(3)(A). As relevant here, this exclusion applies to "correctional institution personnel . . . as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility," 29 C.F.R. §826.30(c)(2)(i). The employer argued that the employee fell within this exception; while the employee argued that she did not.

However, the court observed that the regulation they cited was not effective until April 2, 2020. Like statutes, administrative rules do not apply retroactively, absent clear language to that effect. The language of the regulation suggested that it was not retroactive. Therefore, because the rule took effect after the events alleged in the complaint took place, no exclusion for emergency responders governed in this case.

Finally, the employee’s complaint allegations raising both FMLA interference and retaliation claims failed because she did not allege that she actually sought EFMLEA leave. Both claims required the employee to allege that she gave the employer "notice of her intention to take leave" or "engage[d] in activity protected by the FMLA." Here, her allegations focused on two concerns: (1) the health of family members living under her roof; and (2) the alleged lack of precautions taken by the employer. While those concerns may be relevant to the EPSLA, they were unrelated to her EFMLEA claims.

Accordingly, her claims under the FMLA, as amended by the EFMLEA, were dismissed.

SOURCE: Thornberry v. Powell County Detention Center, (E.D. Ky.), No. 5:20-271-DCR, September 22, 2020.

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