Plaintiff Anthony Payne worked as a Residential Counselor for employer defendant Woods Services Medical Practice Group. On April 1, 2020, six residents tested positive for Covid. Payne tested positive soon thereafter and was instructed by his medical provider to quarantine for 14 days. However, less than a week later, the employer instructed him to end his quarantine and return to work. Payne responded by reminding the employer of his the medical guidance he had received, and also directed the employer to guidance from the CDC. At the same time, he filed a request for Family and Medical Leave ("FMLA").
Payne did not report to work the following day, and was fired.
In the Payne v. Woods Services Case, the Plaintiff Sought FMLA Leave After He Tested Positive for Coronavirus - Court Implicitly Holds Positive Diagnosis a "Serious Health Condition" Under FMLA
Payne filed a suit containing a number of claims, including for interference and retaliation under FMLA. The employer sought to dismiss the FMLA claim asserting that he failed to allege that he had a "serious health condition." Judge Michael Baylson rejected defendant's argument:
Following the reasoning in Hansler, the Court finds that dismissal of Plaintiff's FMLA interference and retaliation claims at this stage would be improper. As in Hansler, Plaintiff has alleged a request for leave. Defendants did not provide an explanation of any deficiencies in Plaintiff's request, or allow an opportunity to cure any such deficiencies, as the FMLA regulations require. Plaintiff was fired the day after his request. Therefore, Plaintiff has adequately pled his claims of interference and retaliation under the FMLA, and the Motion to Dismiss will be denied with respect to Counts I and II.
In the Payne v. Woods Services Case, the Court Held that Plaintiff's FFCRA Claim for Paid Sick Leave Was Valid Because a Residential Counselor at a Residential Facility is not a "Health Care Provider" Pursuant to FFCRA
Payne also brought a claim asserting that he was entitled to paid sick leave pursuant to FFCRA for the time he was out prior to being terminated. Where paid sick leave under FFCRA is concerned, there is an exemption for "Health Care Providers." The question in Payne was whether plaintiff, who was a Residential Counselor who did not provide medical care, fit that definition.
In holding that Payne was not a "Health Care Provider" within the definition established under FFCRA, Judge Baylson wrote:
The FFCRA also includes a provision which allows the Secretary of Labor to issue regulations "to exclude certain health care providers and emergency responders from the definition of employee under section 5110(1) including by allowing the employer of such health care providers and emergency responders to opt out." FFCRA § 5111. Pursuant to this portion of the law, the Department of Labor issued a Final Rule in April 2020 which defines "health care provider" for the purposes of the FFCRA as follows:
anyone employed at any doctor's office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions,
85 Fed. Reg. 19,326, 19,351 (§ 826.25) (Apr. 6, 2020) ("April Rule").
On August 3, 2020, Judge Oetken of the Southern District of New York struck down this definition in a challenge brought by the State of New York under the Administrative Procedure Act, finding that it was not consistent with the FFCRA. See New York v. United States Dep't of Labor, 477 F. Supp. 3d 1, 15 (S.D.N.Y. 2020). Thereafter, the Department of Labor revised the definition of health care provider, and the new Rule took effect on September 16, 2020. See 29 C.F.R. § 826.30 ("September Rule").
The parties dispute which definition of "health care provider" applies, and as a result, whether Plaintiff is excluded from bringing claims under the ESPLA. Defendants argue that the definition in the April Rule applies because it was in effect at the time Plaintiff was fired. They argue that Plaintiff falls within this definition and is therefore exempt from the ESPLA. In the alternative, Defendants argue that Plaintiff also meets the definition in the September Rule. Plaintiff argues that the Court must apply the definition in the FFCRA because the April Rule was invalidated, and the September Rule was not in place at the time of his firing and is not retroactive.
The Court agrees that the definition of "health care provider" in the FFCRA is the appropriate definition to apply here. Judge Oetken provided a detailed analysis of why the definition in the April Rule was "unambiguously forclose[d]" by the text of the FFCRA. New York, 477 F. Supp. 3d at 13. In doing so, the Court explained that the definition in the April Rule "hinges entirely on the identity of the employer" and "includes employees whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system's vitality." Id. at 14-15. The Department of Labor conceded that even "an English professor, librarian, or cafeteria manager at a university with a medical school would all be `health care providers' under the Rule." Id. at 14.
That the April Rule was in place at the time of Plaintiff's firing is irrelevant when the Rule itself was not lawfully promulgated. The Court further agrees that because the September Rule was not yet in effect at the time of Plaintiff's firing, and it does not have a retroactive application, the definition in the FFCRA itself is the one that the Court should apply. That definition includes: "(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services." 29 U.S.C. § 2611. "Any other person capable of providing health care services" includes only specific professions such as podiatrists, dentists, and nurse practitioners. 29 C.F.R. § 825.125. As a "Residential Counselor," Plaintiff does not meet this definition. He is not a "health care provider" and therefore is not exempt from the provisions of the FFCRA. The Motion to Dismiss Counts III and IV will be denied.
In the Payne v. Woods Services Case, the Court Found That Being Positive for Covid-19 Did Not Automatically Equate to a "Disability" Under ADA Due to the Transient Nature of the Coronavirus Illness
Plaintiff Payne brought multiple claims under the Americans With Disabilities Act, including assertions that the employer terminated him because he had a disability or because it perceived that he was disabled. Judge Baylson rejected these claims, reasoning:
In 2008, Congress amended the ADA and "expanded the statute's non-exhaustive list of `major life activities' and declared that the definition of disability shall be construed in favor of broad coverage of individuals under [the] Act, to the maximum extent permitted by the terms of [the] Act." Mills v. Temple Univ., 869 F. Supp. 2d 609, 620 (E.D. Pa. 2012) (Yohn, J.) (quotation omitted). A "record of" claim of discrimination requires a plaintiff to prove that he has a "history of, or had been misclassified as having, an impairment that substantially limited a major life activity." Eshelman v. Agere Sys., 554 F.3d 426, 437 (3d Cir. 2009) (quotation omitted).
"An individual meets the requirement of `being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A). "To adequately plead that an employer `regarded' an employee as having a qualifying disability, the plaintiff must allege (1) that the employer believed that a wholly unimpaired plaintiff had an impairment that substantially limited at least one major life activity, or (2) that the employer believed an employee's actual impairment to limit major life activities when it in fact did not." Kurylo v. Parkhouse Nursing & Rehab. Ctr., L.P., No. 17-4, 2017 WL 1208065, at *5 (E.D. Pa. April 3, 2017) (O'Neill, J.).
The prohibition against "regarded as" discrimination does "not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less." 42 U.S.C. § 12102(3)(B). Because it is a defense, "it is the [defendant's] burden to demonstrate that the impairment would be both transitory and minor." Cook v. City of Phila., 94 F. Supp. 3d 640, 645 n.4 (E.D. Pa. 2015) (Kearney, J.). In Cook, the Court explained that it was inappropriate to grant a Motion to Dismiss when there was "nothing on the face of the complaint to indicate that [the plaintiff's] `regarded as' disability [was] `transitory and minor.'" Id.
Defendants argue that Plaintiff has not alleged that his COVID-19 diagnosis limited any major life activities, that he had a history of disability, or that he had any limitation that went beyond being transitory and minor. Plaintiff argues that when Congress amended the ADA, it made clear that the definition of disability should be interpreted broadly. Based on the expanded interpretation of disability he argues that he meets all three definitions of disability, especially at this early stage. Plaintiff argues that whether his disability is "transitory and minor" is a defense and cannot be proven on the facts alleged in the Complaint.
On this subject, Plaintiff has alleged that:
As a result of his COVID-19 diagnosis, Plaintiff was disabled within the meaning of the ADA and/or PHRA.
In the alternative, Plaintiff was perceived as disabled by the defendants and/or the defendants held perceptions of, or regarding, Plaintiff's disability and/or his continued utility as an employee.
Compl. ¶ 26-27. These allegations are "[t]hreadbare recitals of the elements of [the] cause of action and need not be accepted as true for purposes of this Motion. Ashcroft, 556 U.S. at 678. Plaintiff has not alleged any facts regarding his symptoms or impairments as a result of his COVID-19 diagnosis, and has not alleged what "major life activity" or activities he was unable to perform as a result. While Plaintiff is correct that, given the lack of details regarding his disability in the Complaint, the Court could not determine whether his diagnosis is transitory and minor, he has not sufficiently alleged facts supporting the conclusion that he was "regarded as" disabled. Plaintiff has not alleged any facts related to his employer perceiving him as disabled. If anything, the facts in the Complaint suggest that his employer did not consider him to be disabled, as they requested that he return to work. Therefore, Count VI and VII will be dismissed without prejudice.
In the Payne v. Woods Services Case, the Court Held That Seeking FMLA Leave Did Not Constitute Seeking a Reasonable Accommodation Pursuant to ADA
Payne also asserted that the employer retaliated against him by firing him after he sought a reasonable accommodation in derogation of the ADA. The court rejected that argument:
"To establish a prima facie case of retaliation under the ADA, a plaintiff must show: (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action." Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). "[U]nlike a general ADA discrimination claim, an ADA retaliation claim does not require that the plaintiff demonstrate a disability within the meaning of the ADA, but only that the plaintiff ha[d] a reasonable, good faith belief that he was entitled to request the reasonable accommodation he requested." Sulima, 602 F.3d at 188 (quotation omitted). "Protected activity" under the ADA "includes retaliation against an employee for requesting an accommodation." Id. at 188-89.
"FMLA leave is not a reasonable accommodation." Rutt v. City of Reading, No. 13-4559, 2014 WL 5390428, at *4 (E.D. Pa. Oct. 21, 2014) (Stengel, J.). However, "the ADA can complement FMLA leave. The ADA may require employers to make reasonable accommodations to employees returning from FMLA leave." Id. at *5 (quoting 29 C.F.R. § 825.702(d)). In Rutt, the plaintiff "allege[d] that she requested a light duty assignment." Id. "According to the complaint, defendants denied her requests without engaging in the interactive process." Id. The Court found that these allegations were sufficient to allege a failure to consider a reasonable accommodation.
Defendants argue that Plaintiff has not adequately alleged protected activity because he alleges the same facts to support his FMLA and ADA claims. Plaintiff argues that Defendants "failed to engage in any interactive process as required when an employee puts an employer on notice of a medical condition that may require accommodation." Opp'n 23.
Here, Plaintiff has not alleged any facts which allow the Court to find that he made a request for a reasonable accommodation separate from his request for FMLA leave. He alleges the exact same facts in support of both claims. There is only one "request" alleged and that is to finish the remainder of his quarantine. There is nothing in his Complaint to suggest that his ADA request was a complement to his FMLA request. Plaintiff was not entitled to engage in an "iterative process" with his employer, because he did not actually request an accommodation. Therefore, Count VIII will be dismissed without prejudice.
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