Saturday, April 17, 2021

How Do the Families First Coronavirus Act ("FFCRA"), the Emergency Paid Sick Leave Act ("EPSLA") and the Fair Labor Standards Act ("FLSA") Work Together? Toro v. Acme Barricades (M.D. Fl. 2021) - Covid-19 Paid Sick Leave and Retaliation Case

Emergency Paid Sick Leave Act is EPSLA Requires Paid Sick Leave for Covid-19 Coronavirus
Treated the Same as Claims Under FLSA

FFCRA, EPSLA and FLSA - Here is How They Work in Covid-219 Paid Sick Leave Cases and Covid-19 Retaliation Cases?

In Toro v. ACME BARRICADES, LC, Dist. Court, (MD Florida 2021), the court laid out the statutory scheme as follows:

Under the FCCRA, the EPSLA provides, in relevant part, as follows:

(1) An Employer shall provide to each of its Employees Paid Sick Leave to the extent that Employee is unable to work due to any of the following reasons:

(i) The Employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

(ii) The Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

(iii) The Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a health care provider;

(iv) The Employee is caring for an individual who is subject to an order as described in this paragraph (a)(1)(i) or directed as described in this paragraph (a)(1)(ii);

(v) The Employee is caring for his or her Son or Daughter whose School or Place of Care has been closed for a period of time, whether by order of a State or local official or authority or at the decision of the individual School or Place of Care, or the Child Care Provider of such Son or Daughter is unavailable, for reasons related to COVID-19; or

(vi) The Employee has a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor. . . .

29 C.F.R. § 826.20(a)(1). As it relates to advice of a health care provider to self-quarantine, the FFCRA provides that: "[a]n Employee may take Paid Sick Leave for the reason described in paragraph (a)(1)(ii) of this section only if:

(i) A health care provider advises the Employee to self-quarantine based on a belief that:

(A) The Employee has COVID-19;

(B) The Employee may have COVID-19; or

(C) The Employee is particularly vulnerable to COVID-19; and

(ii) Following the advice of a health care provider to self-quarantine prevents the Employee from being able to work, either at the Employee's normal workplace or by Telework. An Employee who is advised to self-quarantine by a health care provider may not take Paid Sick Leave where the Employer does not have work for the Employee.

Id. § 826.20(a)(3). Under the EPSLA, a qualifying full-time employee is entitled to up to eighty (80) hours of paid sick leave. Id. § 826.21(a)(1).

The EPSLA further provides that

An Employer is prohibited from discharging, disciplining, or discriminating against any Employee because such Employee took Paid Sick Leave under the EPSLA. Likewise, an Employer is prohibited from discharging, disciplining, or discriminating against any Employee because such Employee has filed any complaint or instituted or caused to be instituted any proceeding, including an enforcement proceeding, under or related to the EPSLA, or has testified or is about to testify in any such proceeding.

Id. § 826.150(a); see also Kofler v. Sayde Steeves Cleaning Serv., Inc., No. 8:20-cv-1460-T-33AEP, 2020 WL 5016902, at *2 (M.D. Fla. Aug. 25, 2020) ("Although the FLSA and FFCRA are different statutes, retaliation for asserting rights under the FFCRA violates the FLSA.").


The EPSLA is Part of the FFCRA and Requires That Employees That Must Miss Work Due to Covid-19 Must Receive Paid Sick Leave

So, if the employee satisfies the test set forth in 29 C.F.R. § 826.20(a)(1), then the employee must be paid up to 80 hours of sick pay pursuant to 29 C.F.R. § 826.21(a)(1).

It is notable that in Toro, Magistrate Judge Hoffman determined that the plaintiff had not satisfied the test, and recommended dismissal of plaintiff's claim for unpaid sick pay.  The decision is worthy of a close reading, because it seems, and the Judge agreed, that plaintiff came awfully close to complying with the requirements of § 826.20(a)(1).

The EPSLA Prohibits Retaliation Against Employees Who Seek Paid Leave Under FFRCA, and Retaliation Claims Are Prosecuted Under the FLSA 

One interesting thing about FLSA is that, in addition to making an award or a prevailing plaintiff's attorneys fees mandatory, FLSA liability results in a presumptive award of double damages to the prevailing plaintiff.  

So, a retaliatory discharge claim under EPSLA can have substantial value depending upon the wage loss of the plaintiff.

Retaliation After Employee Complains About Discrimination is Illegal
Many Covid Retaliation Cases Coming?

Toro v. Acme Barricades - Florida Federal Judge Tosses FFCRA Retaliation Claim Due to Failure of EPSLA Paid Leave Claim

Notably, Judge Hoffman in Toro recommended tossing the plaintiff's retaliation claim due to the the fact that the plaintiff had in her view failed to state a sick pay claim.  The Judge failed to engage in any analysis as to whether the plaintiff had a reasonable belief that he was entitled to FFCRA leave and/or had satisfied the requirements of the Act. This must be viewed in light of EEOC's "About Retaliation"  explanation concerning when a valid retaliation claim arises, to wit:
Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.
It is fair to consider whether the plaintiff in Toro should have been permitted to continue with his retaliation claim if he believed his request for Paid Sick Time was reasonable (which it seemed to be given the Judge's explanation). 

Employee Who Wins Discrimination Overtime or FMLA Lawsuit Entitled to Attorneys' Fees
Automatic to Prevailing Plaintiff

Is a Plaintiff Making a Claim for Paid Sick Leave Under FFCRA/EPSLA Entitled to Attorneys Fees?

As noted above, a claim arising out of FFCRA for retaliation is made pursuant to FLSA, and thus a prevailing plaintiff is entitled to recover attorneys fees and costs on such claims.

The question left unanswered in Toro is whether a EPSLA claim for Sick Leave Pay is also governed by FLSA.


The EPSLA also provides that employers who fail to provide paid sick leave as required are considered to have failed to pay minimum wages in violation of section 6 of the FLSA, and that such employers are subject to enforcement proceedings described in sections 16 and 17 of the FLSA. 29 U.S.C. 206, 216, 217.

29 U.S.C. §216 provides for attorneys fees and costs to a prevailing plaintiff. 
Employees Who Win Cases Get Attorneys Fees and Sometimes Double Damages
Double Damages for FFCRA/EPSLA Pursuant to FLSA

Is a Plaintiff Making a Claim for Paid Sick Leave Under FFCRA/EPSLA Entitled to Liquidated, Double or Punitive Damages?

The immediately above analysis suggests that is the case.  

Understood

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