An employer with more than 500 employees was sued for violating the FFCRA. Now, I’m confused. 😕

Virginia Retail from Virginia, USA / CC BY

How did one of the largest supermarket chains in the world, a Fortune 50 company, possibly violate the Families First Coronavirus Response Act?

Allegedly.

Let’s find out as we delve into this unusual federal court complaint filed last month in Indiana.

Most of you know that the FFCRA provides employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. But, the FFCRA only applies to certain public employers and private employers with fewer than 500 employees.

They call it ‘estoppel.’

The plaintiff in the Indiana case acknowledges as much. But, she has a theory as to why the FFCRA should protect her — even though she worked for a company with well over 500 employees. Here it is:

Supposedly, the company amended its “Emergency leave Guidelines” to cover COVID—19 related self-isolation and symptoms (in line with the protections afforded by the FFCRA), under which employees could get up to two weeks of paid leave.
Plus, the company allegedly amended its attendance policy temporarily to provide that attendance points for absences associated with COVID—19 symptoms would be removed from employees’ attendance records once “acceptable medical documentation” was presented.

Thus, by aligning its policies with the FFCRA, it would be inequitable for the company to deny FFCRA coverage. The legalese is “estoppel.”

So what happened? The plaintiff suffered some COVID-19 symptoms, saw a doctor, and was told her to self-isolate for 14 days. Later, the plaintiff was surprised to learn that she did not get the paid FFCRA-like leave — but would have to use vacation instead to avoid getting attendance points.

Does she win?

Well, we’ve seen this sort of theory in the FMLA context before when an FMLA-covered employer accidentally omitted the 50/75 requirement from the FMLA section of the employee handbook. What then happened was an employee suffered heart-attack symptoms on the job, for which he went to the hospital. The employer sent the employee FMLA paperwork and informed him that he was “eligible for FMLA leave” and that it was “important that we [] utilize Family Medical Leave Act (FMLA) leave” during his time off.

But, you guessed it, the business did not employ at least 50 employees at, or within 75 miles of, the employee’s worksite when he sought FMLA leave. Still, the handbook and the employer’s actions opened the door for the employee to take FMLA leave.

But, the Indiana case is different. Most notably, the defendant there is not covered under the FFCRA. So, will the Court engage in some mental gymnastics to reach an equitable outcome for the plaintiff?

Well…

Probably not. But, the plaintiff did tack on a classic FMLA claim, which may have a better chance of surviving a motion to dismiss.

And speaking of classic FMLA…

Don’t forget to register for Friday’s live chat on Zoom at Noon EDT. This week, my special guest is Jeff Nowak, one of the best employee-leave law attorneys I know and publisher of the world-famous FMLA Insights blog. Naturally, we’re dedicating an hour on Friday to exploring how ‘Classic’ FMLA will impact employees returning to work as non-essential businesses re-open. We’ll focus on:

FMLA overlap with FFCRA and PPP (if there is such a thing)
ADA/FMLA interplay
Mental health issues
Ways to stop FMLA fraud and abuse
Q&A (click here to ask your question beforehand)

If you’d like to join us on Friday, May 15, 2020, at Noon EDT — we’ve already got like a bazillion sign-ups — but there’s room for you too. Just click here to register.