Lawsuit Claims Violation of FFCRA

Employers in Texas should be aware of a recent lawsuit in which an employee alleged that her employer violated the Families First Coronavirus Response Act (FFCRA). Even if you are an employer that is too large to be covered by the FFCRA, this lawsuit is particularly important for you to learn about in more detail. The FFCRA is only supposed to apply to employers with fewer than 500 employees, yet the recent lawsuit involves Kroger Co., an employer that employs more than 500 employees that, in theory, should not be covered by the FFCRA. However, the recent lawsuit suggests that, in certain cases, employees may be able to argue that large employers need to provide some of the same benefits as employers covered by the FFCRA.

The recent lawsuit involving a Kroger Co. employee was filed in the Northern District of Indiana, but it could end up being persuasive to courts in Texas. As such, although the lawsuit has yet to be decided, Dallas employers should learn the facts of the case and should consider whether it could be applicable to them.

Facts of the Recent Kroger Case

In the recent case, a Kroger Co. employee, Ariel Robtoy, filed a lawsuit against the company after she was fired. According to an article about the case in Bloomberg Law, Robtoy was fired from her position at an Indiana distribution center when she was “diagnosed as possibly having COVID-19.” According to the lawsuit, the employee started to develop symptoms during the weekend of April 4, when she was not working. She called the employer to say that she would be absent from work on Monday, April 7, and had a telehealth visit scheduled with a doctor. That doctor gave her a note that said she should be excused from work until April 9 at the earliest, and a subsequent doctor’s note indicated that Robtoy should self-quarantine for 14 days because she “either had an upper respiratory infection or COVID-19.”

Robtoy had no remaining sick or vacation time to use for her self-quarantine, and as a result of missing work, she was terminated. Robtoy’s lawsuit argues that Kroger Co. violated the FFCRA because, although the company was not covered by the statute due to its large size (500 or more employees), the company “voluntarily amended its emergency leave guidelines to permit employees affected by COVID-19 up to 14 days of paid leave.”

Can an Employer be Bound by the FFCRA if it “Opts in”?

This case raises other questions, including whether or not the employer violated Family and Medical Leave Act (FMLA) requirements.  But putting that issue aside for now, the primary question we consider here deals with the FFCRA: is an employer bound by the FFCRA if it is not covered by the statute but “opts in” by amending its leave policy to reflect the terms of the FFCRA?  In other limited instances, courts have found that voluntary compliance with FMLA requirements can subject a company to FMLA liability even if the company is not a covered entity under the FMLA.

Employers that are covered by the FFCRA need to comply with the paid leave policy. Employers that are not covered, but that have amended policies to reflect the language or benefits of the FFCRA, need to pay attention to this case in order to determine whether there is a possibility that they could be covered by the statute as a result of changing a leave policy due to COVID-19. Employers should also note that, even if the case against Kroger Co. does not result in the company being bound by the FFCRA, it could still face a successful breach of contract claim if the company violated its own policy. In limited scenarios, a violation of the terms of written paid leave policies may result in a wage claim in Texas.

Contact an Employment Law Attorney in Dallas, Texas

Do you have questions or concerns about your obligations as an employer under the FFCRA? An employment lawyer in Dallas can assist you. Contact Simon Paschal PLLC to speak with an experienced attorney.

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