By Pension and Benefits Editorial Staff
Although a McDonald’s manager was ordered to quarantine as a family member of a suspected COVID-19 infected individual, her spouse, the fact her last day worked was before the Emergency Paid Sick Leave Act’s effective date, as well as that she wasn’t named on the quarantine order, an RN who didn’t qualify as a health care provider under the statute signed the quarantine order, and that she hadn’t given start and end dates at the time she discussed leave, all doomed her paid sick leave claim. In essence, she couldn’t show that she had fulfilled all the statutory requirements for valid EPSLA leave
Remember the chaos? In late March 2020, just as the U.S. was beginning to shut down due to escalating COVID-19 case numbers and the Families First Coronavirus Response Act was soon to become effective, a full-time McDonald’s restaurant manager’s spouse took a COVID test. Sometime between March 25 and April 2, her spouse was directed to quarantine by an RN; the quarantine instructions applied to the entire family living in the manager’s home. The manager provided the quarantine instructions to her supervisors on April 2 and told them later she should be able to return from quarantine on April 20.
Yet until mid-May, she and her supervisors only discussed the quarantine notice and the fact that her address, but not her name, was on it, among other issues. Her employer cancelled a planned meeting with the manager on May 13. On May 29, her spouse tested positive for COVID-19, and on June 1, one of her supervisors sent her a text message about the Families First Coronavirus Response Act and his plan to send her FFCRA forms.
Filed suit. By August, she had apparently not returned to work but sued her employer, alleging three violations of the FFCRA: (1) retaliation, (2) failure to pay for FFCRA Emergency Paid Sick Leave Act leave, and (3) failure to provide mandated notice. But the employer contended that she failed to allege she actually took leave under the EPSLA, so she couldn’t state a claim under a retaliation or failure to pay theory. The employer also argued that the complaint did not allege that it failed to provide notice per the statute. The court agreed, dismissing her complaint with prejudice.
Statutory requirements. Under the EPSLA, covered employers must provide paid sick time when an employee is unable to work (or telework) due to a need for leave because the "employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19." The statutory framework provides that FFCRA retaliation claims conceptually may be brought under the FLSA, which requires protected activity under the FLSA known by the employer
Accordingly, the manager had to allege facts showing that she took leave under the EPSLA to establish the "protected activity" prong of the FFCRA retaliation claim. For her failure to grant paid sick leave under the FFCRA, she had to show that her employer denied her paid leave she was entitled to receive under the EPSLA. In other words, stressed the court, taking valid leave pursuant to the EPSLA is a necessary condition for success on two of the manager’s claims, and she failed to show she had taken EPLSA leave.
Documentation lacking. Specifically, for EPSLA leave, the manager needed to provide—before taking leave—documentation containing her name; date(s) for which leave is requested; qualifying reason for the leave; oral or written statement that she was unable to work because of the qualified reason for leave; and the name of the health care provider who advised her to self-quarantine "due to concerns related to COVID-19" (see 29 C.F.R. § 826.100 (a), (c)). Her complaint only alleged that she stopped working on March 23 and she provided a quarantine notice to her employer on April 2.
Leave too soon; no end date. The first hurdle the manager couldn’t overcome was that she took leave too soon, since the FFCRA and EPSLA did not go into effect until the beginning of April. The court did find that as of April 2 "both her chance at leave and her request for leave ripened, with statutory effectiveness and the April 2 instructions text from her to her bosses." But that was not enough, said the court. She did not tell her employer that her quarantine would end on April 20 until April 11—thus she did not provide the dates of leave requested before taking leave.
No health care provider. Further, the quarantine instruction was not signed or provided by a health care provider as defined by the statute and regulations—only by a registered nurse—and it did not include the manager’s name. According to the court, "the § 826.20 (a)(1)(ii) leave reason applies if the employee ‘has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.’" Lacking her name, and signed by an RN, who did not qualify under the applicable statute and regulations as a health care provider, the complaint failed to state that she had fulfilled the statutory requirements for EPLSA leave. That ended her wage claim.
No retaliation claim. The FFCRA statutory scope for protected activity is quite narrow, said the court; Section 5104 bars discrimination against an employee who "takes leave in accordance with this Act" or formally participates in enforcement proceedings. Unlike the FMLA anti-retaliation statute, FFCRA does not extend to requests for or attempts at leave. Without having taken valid EPSLA leave, the manager’s retaliation theory, too, was doomed.
Notice. As for the manager’s notice claim, her allegations were again deficient, because she claimed that her employer only provided her with emailed notice of the statutory requirements in June—three days after her spouse was finally diagnosed with COVID-19. But that was permissive notice; employers are only required to post a notice on their premises. She never alleged that the employer had not posted a notice on its premises.
SOURCE: Colombe v. SGN, Inc., (E.D. Ky.), No. 5:20-CV-374-REW, March 29, 2021.
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