The lawsuits are coming! The lawsuits are coming!
Key to remember: The FFCRA rapidly provided for employee leave, and now employees are filing claims against employers who may have violated the law.
Applies to: Private employers with fewer than 500 employees; all public agencies.
Impact to customers: Employers (customers) open themselves up to risk if they ignore or make light of their FFCRA obligations.
Possible impact to JJK products/services: This information is ripe for news articles. We have no FFCRA-specific product/service, but cases may be included in future updates of the FFCRA mini manual that is part of the May update of the Essentials of FMLA manual.
While stay home orders ease up, employer concerns over the Families First Coronavirus Response Act (FFCRA) should not. This law was created fast and furiously, and employers had little time to become aware of it, let alone comply with it. Within weeks of the law’s enactment, the claims began, arguing that employees were denied leave under the FFCRA or they were retaliated against because they requested such leave.
In one of the first suits, after an employee was directed to work from home, she requested two hours of paid time off per day under the FFCRA to take care of her son, as his school was shut down due to COVID-91-related reasons. In response to her request, the employee’s supervisor denied the leave and fired the employee a few days later. The company argued that the reason for the termination was that the employee had conflicts with coworkers, and it was best they part ways. In the suit, the employee seeks reinstatement, recovery of lost wages and benefits, attorney fees, interest on any award, and liquidated damages. All this can be expensive.
The childcare provisions of the FFCRA generally expand upon the regular FMLA, so the FMLA’s provision that anyone acting on behalf of the employer (e.g., supervisors, managers, HR professionals) may be individually named in a claim, is also in play.
While claims litigated when the law was new might see a bit more leniency, as time goes by, employers may be held more accountable as they are expected to realize the law’s requirements and abide by them.
The FFCRA has a few interesting twists. It does not, for example, require employees (plaintiffs) to exhaust administrative remedies before filing a private lawsuit. This means that claims can come fast.
Employees may also file complaints with the Department of Labor’s Wage and Hour Division regarding FFCRA. Early investigations involved employers who allegedly failed to pay employees for what qualified as paid sick leave for reasons such as a doctor’s instructions to self-quarantine. Employers generally had to pay the employees’ full wages of $20 an hour for 80 hours of leave in these situations. One employer mistakenly believed that an employee had to submit proof of a positive coronavirus test to qualify for the paid leave. Other employers failed to provide the expanded family and medical leave for childcare issues, like the case referenced earlier.
Employers may take some steps to help avoid FFCRA claims. Training management staff on the FFCRA, for example, can help shore up any weak links you may have. Having one company representative be well versed in the FFCRA and responsible for staying up to date on it can also ensure actions taken do not risk a violation. This individual may also be tapped to handle any FFCRA-related issues and questions as they arise.
The FFCRA remains effective until December 31, 2020, so there is plenty of time for claims to be submitted. Friends, U.S. employment law attorneys have enough to do; no need to give them more work.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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