November 18, 2022

The Week in FFCRA Cases: Judge Invalidates DOL Implementation, Expanding Eligibility

The last couple of weeks has seen increased interest and scrutiny over the implementation and eligibility of the FFCRA. In another post, we highlighted a New York Southern District judge’s ruling that parts of the Department of Labor's implementation of the law. The major implication of this ruling is that significantly more people are eligible for protections under the FFCRA. At the same time, the DOL’s Solicitor General warned that the department’s FFCRA enforcement has fallen short. Furthermore, in a recent op-ed for the New York Times Joan C. Williams of the Center for WorkLife Law highlights the cracks in the FFCRA through which working moms are slipping.

The complaints we found relevant this week highlight the critiques from the judiciary and solicitor general at the DOL. They are also eerily similar—parents who need to take care of their children, some of whom are immunocompromised, are being denied telework or leave or are being terminated. Further, we are continuing to see plaintiffs who voice concerns to their employers about workplace safety being terminated after doing so, which has deep implications about the argument in congress over liability shields in the thus far non-existent stimulus bill.

Of special note: the plaintiffs in Joyner v. Intermodal Cartage Co. were terminated for "lack of work" after beginning to use their leave under FFCRA. This is the loophole—that employers with no work for employees to do could deny or suddenly revoke this leave—struck down in the Southern District. While the NY decision doesn't apply to Tennessee, where this complaint was filed, it may prompt the DOL to eventually change this rule nationwide. Still, it is likely that the DOL will attempt to keep any change from applying retroactively, giving employers who relied on the loophole an out and leaving plaintiffs out of luck.

  • Complaint, Manso v. Marshall, No. 1:20-cv-23263-XXXX (S.D. Fla. Aug. 5, 2020)
  • Plaintiff sued her employer for denying her FFCRA leave and for retaliating against her in violation of FFCRA and Florida law. In response to the COVID-19 pandemic, schools were closed and Plaintiff was the primary caretaker for her child. She took her child to work with her until Defendants instructed her to stop. Plaintiff then requested to telework as an accommodation, which was denied. Her request for paid leave was also denied. When Plaintiff complained about Defendant’s failure to provide paid sick leave or allow her to telework, she was fired. In addition, pursuant to the Executive Order directing health care practitioners to stop elective medical procedures, Defendant continued to perform non-essential cosmetic procedures. When Plaintiff complained about this and the fact that safety precautions were nonexistent, she was retaliated against. 
  • Complaint, Joyner v. Intermodal Cartage Co., No. 3:20cv676 (M.D. Tenn. Aug. 5, 2020)
  • Plaintiffs Joyner and Harper sued their employer for sex discrimination and retaliation in violation of FFCRA. As a result of COVID-19, Tennessee declared a state of emergency. The Defendant’s business was deemed essential and therefore allowed to stay open. Despite multiple employees feeling ill and staying home from work, there were no workplace safety precautions in place, like wearing masks or gloves, except providing hand sanitizer and closing a door between different rooms. One day, a driver who tested positive for COVID-19 came into work, touching surfaces that other people touched after him, potentially spreading the virus. When Plaintiff Joyner confronted Defendant, he told her not to tell anyone about it. The next day, she started to feel sick, went to her health care provider, and was instructed to self-quarantine and request leave from work. Plaintiff Joyner was approved for FFCRA leave but was then fired four days later due to lack of work. Plaintiff Harper exhibited frequent issues with bronchitis and her physician recommended that she take leave under FFCRA. Because of her compromised immune system, she requested leave. She was also fired for lack of work. Defendant allowed male workers to take leave under FFCRA but denied Plaintiffs Joyner and Harper, both female workers. 
  • Complaint, McShea v. JJLH of Trevose, L.L.C., No. 1:20-cv-10090-RMB-KMW (D.N.J. Aug. 6, 2020)
  • Plaintiff, a sales manager,  sued his employer, a car dealership, for retaliation and unlawful termination in violation of FFCRA. Plaintiff has an immunocompromised child at home and must take significant precautions to limit the transmission of COVID-19. Plaintiff requested to telework as an accommodation but was denied. Moreover, Defendant did not take proper safety precautions to stop the spread and forced employees to come into work even after New Jersey ordered all non-essential businesses to close. When Plaintiff voiced his concerns about failure to follow basic precautionary measures and complained about his accommodations being denied, he was retaliated against and terminated under the guise of a false furlough.
  • Complaint, Milman v. Fieger & Fieger, P.C., No. 2:20-cv-12154-SJM-DRG (E.D. Mich. Aug. 11, 2020)
  • Plaintiff sued her employer for denial of leave and retaliation in violation of FFCRA. Plaintiff’s children’s schools and daycare facility closed as a result of COVID-19. Her son had an underlying respiratory condition, placing him at higher risk of contracting COVID-19. Plaintiff requested to work from home but was denied and told that if she wanted to stay home, she would have to use personal time off (PTO), which she did. In addition, because Plaintiff’s desk was in an open area, she requested to move to a more secluded workspace upon her return. Meanwhile, her son started experiencing suspected symptoms of Covid-19, and Plaintiff sought to stay home longer. She was then notified that she had been terminated due to the intent to permanently leave the firm and refusing to come into work because of her son’s sickness.
  • Complaint, Ventura v. Equestrian Sport Prods. L.L.C., No. 9:20-cv-81273-XXXX (S.D. Fla. Aug. 5, 2020)

Berke-Weiss Law Attorneys Speak at Endometriosis Foundation Conference

March 27, 2023
Disability Discrimination
Berke-Weiss Law in the News
Berke-Weiss Law attorneys, Laurie Berke-Weiss, Alex Berke, and Rosa Aliberti, spoke at the EndoFound Global Patient Symposium, commonly referred to as Patient Day, about the legal rights and protections for those with endometriosis.

AI and Compliance, Employers Brace for a Brave New World

March 16, 2023
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Over the last decade, more and more companies have utilized automated tools to aid in hiring, training, retaining. Historically, when practices and technologies are adopted rapidly, the law takes time to catch up and this is no different, with 2023 looking to be a year where companies are going to come under more detailed regulatory and compliance regimes focused on AI.

Elon Musk’s Public Mocking of Employee’s Disability Highlights the Importance of Reasonable Accommodations and Health Information Privacy

March 16, 2023
Disability Discrimination
Elon Musk mocked a Twitter employee for his disability and lack of clarity regarding job status, highlighting issues disabled workers face in the workplace.

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