As you may recall, the Families First Coronavirus Response Act (FFCRA), which incorporated the Emergency Family and Medical Leave Expansion Act (EFMLEA), expired on December 31, 2020. Although FFCRA leave was no longer mandatory after 2020, the tax credits available to employers who provided COVID-related leave were extended through September 30, 2021, so that employers that voluntarily provided FFCRA paid leave to their employees were able to provide this benefit through September 30, effectively without cost.
The FFCRA required employers to provide up to 80 hours of paid sick leave at the employee's regular rate of pay for employees unable to work because they were quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis, or up to 80 hours of paid sick leave at 2/3 the employee's regular rate of pay because the employee was unable to work because of a need to care for an individual subject to quarantine or a child whose school or childcare provider was closed or unavailable for COVID-related reasons. In addition, up to an additional 10 weeks of paid family and medical leave was provided under the EFMLEA at 2/3 the employee's regular rate of pay for employees unable to work because they needed to care for their child whose school or childcare provider was closed or unavailable for COVID-related reasons.
Employers may have thought that with the expiration of the FFCRA, they no longer have to be concerned with FFCRA/EFMLEA issues. However, we recently saw that this may not be the case. On January 24, 2022, the Rhode Island Federal District Court allowed an employee who was terminated after being denied the ability to work from home to proceed with her FFCRA claims.
In Jarry v. ECC Corporation (D.R.I. 2022), the plaintiff requested that she be allowed to work from home on the three days each week that her son was required to attend school remotely. The child's school was operating on a hybrid basis due to COVID. Just days after her employer denied her request, she was terminated, ostensibly because of a work product error that she had made months earlier. The plaintiff argued that the employer's purported reason for her termination was pretextual and that the work at issue had been reviewed and accepted by the company. She filed an FFCRA claim alleging that her employer violated the FMLA's interference and retaliation protections, which the FFCRA extended to employees needing EFMLEA leave. The defendant's employer filed a motion to dismiss.
The court denied the employee's retaliation claim because she had not complained to her employer that she was entitled to EFMLEA leave. However, the court found that because her employer had not advised her of her EFMLEA rights, she had stated a plausible claim of FMLA interference. The court held that the employer had an unambiguous duty to notify the plaintiff of her rights under the EFMLEA. This was especially important in this case because the plaintiff had informed her employer that the reason she asked to work from home was that her child's school was operating on a hybrid basis due to COVID – a situation specifically protected by the EFMLEA.
The takeaway here is that employers that failed to adequately comply with the FFCRA's notice or other requirements could potentially face FMLA interference or retaliation claims. If you are a Consulting or Enterprise member and have any concerns, contact Employers Council for assistance.