An Ounce of Prevention is Worth a Pound of Cure: Employer Escapes Liability in FFCRA COVID Litigation

America may be moving forward from the COVID-19 pandemic, but employers continue to deal with its aftermath as they face lawsuits alleging violations under the Families First Coronavirus Response Act (FFCRA). On July 19, 2022, in Brian Spells v. Physician and Tactical Healthcare Services, LLC, the District Court of New Jersey provided employers with some assurance that careful monitoring of changes to evolving legislation and regulations, and acting reasonably and in good faith to comply with the new mandates will protect them from claims brought by their employees.

As our readers are aware, FFCRA, enacted in March 2020, required employers to provide paid sick leave and expanded family and medical leave for reasons related to COVID-19. While employers adapted their paid-sick leave policies, not all employees who requested paid sick leave or other entitlements under FFCRA received it, and several filed lawsuits against their employers alleging that that they were wrongfully denied paid leave benefits or were wrongfully terminated as a result of their request.

Facts

Brian Spells joined Physician and Tactical Healthcare Services, LLIC (PATHS) as a Billing Representative on September 30, 2019 and was working with the company when the pandemic hit. On March 31, 2020, Spells contacted the PATHS’ Director of Human Resources and requested to work from home, because of his growing fear of being in the office daily with the virus spreading rapidly. He also asked about quarantining if a doctor recommended it. He did mention or request paid sick leave.

Spells’ direct supervisor denied his request to work from home because she felt he needed more training and direct supervision. When Spells advised that he was beginning to experience Covid-like symptoms, which was why he had asked about quarantining, he was told to contact his healthcare provider. Spell’s physician provided him with a note stating that he should isolate at home until he no longer had a fever and his symptoms improved.

At the time however FFCRA exempted “health care providers” from the paid leave protections and, from its inception, the U.S. Department of Labor (USDOL) changed its definition of “health care provider” several times. PATHS closely monitored the new law, and, with each change, PATHS determined whether its employees were exempt from FFCRA’s entitlements and communicated this information to its employees. PATHS also circulated frequent email updates regarding COVID-19 pandemic’s impact on the company and its plans to allow certain employees to engage in remote work, while others would rotate between remote and in-person work.

The District Court’s Decision

The District Judge rejected Spells’ claims that PATHS failed to pay his paid sick leave under FFCRA and retaliated against him finding that PATHS relied in good faith on the regulations set forth by the USDOL and adapted its policies accordingly. The court also concluded that Spells failed to show that he engaged in protected activity, that PATHS undertook an adverse employment action against him and that PATHS terminated him and refused to rehire him.

The Court explained that in order to use the good-faith defense, the employer must show that it acted (1) in good faith; and (2) in conformity with a particular ruling; and (3) in reliance on the specified agency’s writing, practice or policy. The Court found that the facts unambiguously supported each of the three elements and found that (1) PATHS had initially planned to allow its employees to take FFCRA leave upon learning that FFCRA existed and would take effect on April 2, 2020; (2) when FFCRA was first passed, PATHS’ HR Director discussed it with the PATHS’ CEO and they concluded that PATHS employees were not exempt from FFCRA; and (3) PATHS’ Human Resources Department circulated an email to all employees on March 19, 2020, explaining a plan to move forward in the pandemic – which PATHS believed conformed with the plan; and (4) on March 26, 2020, PATHS’ HR Director circulated an email to PATHS’ employees regarding Paid Sick Leave and FFCRA. The Court concluded that PATHS met each element of the good-faith reliance defense.

The Court also concluded that Spells’ retaliation claim must also fail because he never requested FFCRA leave and, even if he did, he was not eligible for leave. In addition, Spells never filed any complaints during his employment. Thus, the Court found that his termination and PATHS’ refusal to rehire him were not causally linked to any protected activity. The Court noted that PATHS very clearly understood that FFCRA required it to provide certain employees with paid sick leave and intended to adhere to its guidelines. Notably, the Court pointed to the following facts to support its decision that PATHS understood FFCRA’S mandates and planned to follow them:

• PATHS established a plan to address the COVID-19 pandemic.
• PATHS pandemic plan allowed certain employees to work remotely.
• PATHS initially determined that FFCRA applied.
• PATHS emailed to all employees the DOL’s circular regarding employees’ rights to be paid sick leave and expanded family and medical leave under FFCRA.
• PATHS fully complied, in good faith, with FFCRA when it was first enacted.
• PATHS continued to reevaluate its policies related to FFCRA and paid sick leave as the regulations and guidance changed, and it adjusted these policies accordingly.
• PATHS allowed Spells 21 days of unpaid sick leave before he took a voluntary lay off and was eventually terminated. During his leave,
• PATHS actively requested that he return to the office, by a certain date, to avoid being laid off.
• Spells continued to request the ability to work from home and PATHS responded with the same, consistent message – that he was not eligible for remote work.
• PATHS also explained the process Spells should follow if he decided to seek reemployment opportunities in the future. However, he did not contact his former supervisors as instructed – and even if he had contacted the appropriate individuals, his department had been downsized due to lack of work.
• When PATHS learned of the September Rule, and, specifically, that its employees were no longer exempt from FFCRA, PATHS fully adopted the new rule and an email was sent to all employees advising them of their eligibility to receive paid sick leave.
• PATHS received and granted several requests for FFCRA leave after the September Rule was in effect, including to members of Spells’ former department.
• All employees who received paid sick leave returned to their jobs.

Because the record failed to show any evidence of retaliation and contained multiple examples of PATHS’ pattern of following a paid sick leave policy in line with the evolving regulations and guidance from the USDOL, the District Court also could not conclude that PATHS’ actions were motivated by an intent to retaliate against Spells for seeking FFCRA paid sick leave.

Bottom Line

The Court’s decision provides helpful guidance to employers who are continuing to deal with COVID-19 in the workplace and who may be vulnerable to lawsuits based on alleged violations of FFCRA or other laws enacted during the pandemic. This case demonstrates the importance of taking affirmative steps to stay current on new laws, to adjust paid leave or other policies accordingly as new laws evolve, and to timely communicate these changes to employees. Showing that an employer relied, in good faith, on agency regulations, decisions, and other guidance will help employers defend their policy decisions regarding FFCRA and other new employment-related laws that emerge. Taking appropriate steps in consultation with legal counsel to ensure compliance with new and evolving legislation will also help protect employers from these types of lawsuits in the future.

For more information regarding this decision, for guidance navigating continued COVID-19 issues at your workplace and other legal developments resulting from the COVID-19 pandemic, please contact Dina M. Mastellone, Esq., Partner and Chair of the firm’s Human Resources Counseling & Compliance Practice Group, via email here and Douglas E. Solomon, Esq., Partner and Chair of the firm’s OSHA Practice Group, via email here or 973-533-0777.