FMLA, FFCRA, ESPL, and EFML, oh my!
The FMLA by itself is challenging to administer but adding the Families First Coronavirus Response Act (FFCRA) to the mix only makes things, well, more challenging. If you’ve had challenges keeping them straight, you’re not alone.
Case in point
Sometime during April and May, Gertrude was exposed to the COVID-19 virus and eventually contracted it. As a result, she was unable to work and sought paid leave from her employer under the FMLA. On May 22, however, she was terminated.
Gertrude sued, claiming she was fired for invoking her FMLA rights; that she was entitled to FMLA benefits under the FFCRA.
Now, the FFCRA affords two types of leave: Emergency paid sick leave (EPSL) for various reasons, and expanded family and medical leave (EFML) for childcare/school/daycare issues. Only the EFML amends the FMLA, the part that Gertrude invoked when requesting leave. The EPSL, on the other and, does not amend any law.
Gertrude seems to have been confused; she never argued that she had a right to leave under the EFML. She argued that she was entitled to FMLA leave under the EPSL provisions, which, she claimed, provides leave for employees who contract the virus. This, however, is not true. The EPSL and the FMLA are not linked, except when employees take leave for childcare issues. Gertrude took leave for her own condition, not for childcare.
The complaint, however, indicated that Gertrude was terminated as a result of her request for FMLA leave. The court agreed to this claim, and allowed the case to proceed, denying the employer summary judgement.
While Gertrude requested paid leave under the FMLA with reference to the EFML part of the FFCRA, the employer should have recognized the request as possibly falling under the FMLA or the ESPL part of the FFCRA. Either would provide the employee with job-protected leave. The employer, however, appears to have retaliated against Gertrude for requesting leave, without any consideration to either law.
The fact that her termination was on the heels of Gertrude contracting the virus and asking for leave due to her condition did not help the employer’s defense.
Employees are not required to be familiar with the applicable laws. Therefore, when employees request leave, whether paid or unpaid, employers are wise to consider the laws that might be in play, and not jump to termination.
Gomes v. Steere House, District of R.I., No. 20-270, November 2, 2020.