Federal Judge In Kentucky Distinguishes Registered Nurse from Nurse Practitioner, Concludes an RN is Not a "Health Care Provider" Pursuant to EPSLA
First some brief background. The defendant SGN owned a McDonalds in Lexington, and had employed plaintiff as a manager since 2016. The plaintiff last came to work on March 23, 2020 because her husband was diagnosed with Coronavirus. He and his entire family (including plaintiff) received instructions from a Registered Nurse to quarantine. Plaintiff reported the quarantine instructions via text messages. There was thereafter a lot of back and forth between the employer and plaintiff concerning leave requirements, return to work dates and the like. It seems as though plaintiff initially sought to return to work by April 20, but there is no indication that she did so, with the back and forth discussions reported int he case to have lasted up to at least June 1.
It does not appear that plaintiff was fired, or ever returned to work. Footnote 8 in the decision notes that plaintiff did state a claim for retaliation, in that she alleged "adverse action" in the form of being prohibited to return to work.
There is a lot to unpack in this case, but we will focus on two major holdings.
The EPSLA Requires an Employee to Provide Written Notice from a Health Care Provider in Support of a Request for Paid Sick Leave Under the Act - Judge Applies FMLA definition of "Health Care Provider " and Holds RN Does Not Qualify
The first is the Court's decision that the plaintiff had failed to state a claim for violation of the paid leave provisions found in the Employee Paid Sick Leave Act ("EPSLA"), which is found within the Families First Coronavirus Relief Act ("FFCRA"). In doing so, the Court found that the note plaintiff submitted from the Registered Nurse as proof of the need to quarantine in support of her request for paid time off was statutorily deficient because it did not satisfy the FMLA definition of a Health Care Provider:
[Plaintiff] alleges that the involved provider— the quarantine instruction author—was a Registered Nurse. With all respect due that most honorable profession, an RN does not qualify under the applicable statute and regulations, as footnote 9 documents.
[9] Under the statute, a "health care provider" has the same meaning as the meaning "in section 101 of the [FMLA]." § 5110(4). A "health care provider," according to the regulations, has the same meaning as its definition under the Family and Medical Leave Act (FMLA). 29 C.F.R. § 826.20(a)(3) (pointing to 29 C.F.R. § 825.102). The FMLA defines a "health care provider" as "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 [ ] any other person determined by the Secretary to be capable of providing health care services." 29 U.S.C. § 2611(6)(A)-(B). Under the FMLA contemplated regulations, health care provider is defined as "(i) [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 (ii) any other person determined by the Secretary to be capable of providing health care services." 29 C.F.R. § 825.102. The regulation, in pertinent part, further defines "others capable of providing health care services" as including "[n]urse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law[.]" Id. Registered Nurse Sarah Robinson provided the quarantine instruction. DE 1-1 at ¶ 16. Under Kentucky law, a "registered nurse" is not the same as a "nurse practitioner." See KRS 314.011(5), (7), (8) (defining "registered nurse" as "one who is licensed or holds the privilege under the provisions of this chapter to engage in registered nurse practice" and "advanced practice registered nurse" as "a certified nurse practitioner, certified registered nurse anesthetist, certified nurse midwife, or clinical nurse specialist, who is licensed to engage in advance practice registered nursing pursuant to KRS 314.042").
The Court thus finds that the Complaint fails to state a claim on entitlement to leave; this sinks the wage claim.
Many make take the view that the court's holding where plaintiff's retaliation claim is concerned is far more significant than is EPSLA determination. Here is what the court said:
As for retaliation, the statutory scope for protected activity is quite narrow. Section 5104 bars discrimination against an employee who "takes leave in accordance with this Act" or formally participates in enforcement proceedings. 134 Stat. at 197. Colombe asserts only the first variety, but as the Court has found, she did not have the right to and did not take FFCRA leave. Further, unlike, e.g., the FMLA anti-retaliation statute, FFCRA does not extend to requests for or attempts at leave. The FMLA broadly guards against interference with "the attempt to exercise" a right to leave. 29 U.S.C. § 2615(a)(1). The FFCRA protects only an employee "who— takes leave in accordance with this Act." § 5104, 134 Stat. at 197. The Complaint, thus, does not allege actionable conduct relative to retaliation.
The Colombe court's admittedly narrow reading of the statutory language of the FFCRA may or may not be correct; only time will tell. That said, it is at odds with similar analysis in the case of Kofler v. Sayde Steeves Cleaning Service, Inc., wherein a federal judge in Florida held that termination of an employee seeking FFCRA leave violated the anti-retaliation provisions of FLSA.
We will all need to keep a look out for new Covid cases to see how these retaliation cases proceed.
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