Covid Case of the Week - Gomes v. Steere House - Rhode Island Federal Judge Rules Failure to Specifically Request Paid Leave Under EPSLA Dooms Claim for Paid Leave, While Upholding FMLA Retaliation Claim

Woman in Bed Surrounded by Doctors and Nurses With Coronavirus

Must One Specifically Identify EPSLA in Order to Qualify for Paid Leave?

Woman With Coronavirus Fired After Taking Unpaid Leave Under Family and Medical Leave Act ("FMLA") States Claim for Illegal Retaliation Under FMLA But Not Entitled to Paid Leave Under Emergency Paid Sick Leave Act ("EPSLA")

In Gomes v. Steere House, the plaintiff, who worked as an LPN at a nursing and rehabilitation center, contracted the Coronavirus in April or May 2020. Unable to work due to illness, she then "sought paid leave from Steere House under the FMLA." On May 22, 2020, while apparently still out of work, she was fired. She filed a lawsuit seeking paid leave for the time she was out of work pursuant to FMLA, and for damages arising as a result of her termination.

Federal Judge Rule Failure to Expressly Request Paid Leave Under EPSLA Fatal to Claim for Paid Leave for Otherwise Qualified Employee

Here is what the Judge said concerning the plaintiff's request for paid leave (we added emphasis):

Ms. Gomes argues that she was entitled to FMLA benefits under the rules set forth in the Families First Coronavirus Response Act ("FFCRA"), ECF No. 1 at ¶¶ 9-10, which was enacted to give workers affected by COVID-19 the opportunity to obtain paid leave. See Pub. L. No. 116-127, 134 Stat. 178 (2020).

The FFCRA contains two acts providing for such relief: the Emergency Paid Sick Leave Act ("EPSLA") and the Emergency Family and Medical Leave Expansion Act ("EFMLEA"). Id. Importantly, only the EFMLEA amends the FMLA, the Act that Ms. Gomes invoked when requesting leave from Steere House. Thornberry v. Powell Cty. Detention Ctr., 2020 WL 5647483, at *2 (E.D. Ky. Sept. 22, 2020). The EPSLA, on the other hand, does not amend any existing statute, and its enforcement provisions are tied to the Fair Labor Standards Act, not the FMLA. Id. (citing 134 Stat. at 197).

Ms. Gomes never argues that she had a right to leave under the EFMLEA, which applies only to employees who are unable to work because they need to take care of a child "whose School or Place of Care has been closed, or whose Child Care Provider is unavailable, for reasons related to COVID-19." 29 C.F.R. § 826.20(b). Rather, she argues that she was entitled to FMLA leave under the rules set forth in the EPSLA, which provides paid leave for workers who themselves contract the COVID-19 virus. See 134 Stat. at 195-96. Because, as stated, the EPSLA has no connection to the FMLA and because Ms. Gomes does not state any facts suggesting that she was qualified for FMLA leave under the EFMLEA, it is apparent that she did not qualify for FMLA benefits.

So, here is what the Gomes court held:

1) plaintiff only mentioned FMLA when she asked for paid time off due to getting sick from Coronavirus;

2) the FFCRA's paid leave provision, found in the Emergency Family and Medical Leave Expansion Act ("EFMLEA") applies only where an employee misses work because a child is out of school;

3) employees who contract Coronavirus are entitled to paid leave only pursuant to the Emergency Paid Sick Leave Act ("EPSLA"), which is administered pursuant to eh Fair Labor Standards Act ("FLSA");

4) Ms. Gomes never said she had a child missing school due to Coronavirus, and this was not entitled to EFMLEA; and,

5) Since Ms. Gomes never mentioned EPSLA, FFCRA or FLSA when she sought unpaid leave, her claim for such paid leave must fail.

Emergency Paid Sick Leave Act for Coronavirus (Covid-19)

Does Not Specifically Require Employee Identify EPSLA in Order to Qualify for Paid Leave

Employees Who Must Miss Work Due to Covid-19 (Coronavirus) Are Entitled to 2-Weeks Paid Leave

What did the judge in Gomes fail to say? The EPSLA states in pertinent part:

(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.

The Gomes court never identified this specific language, although acknowledged its general existence.

Specificity Required by Gomes Court NOT Required Under FMLA

Does an Employee Have to Specifically Request "EPSLA Leave" in Order to be Entitled to Paid Leave Under FFCRA?

The Gomes court did not explicitly hold as much, but that may be the import of its holding.

Employees Seeking Unpaid Leave Under the Family and Medical Leave Act Are Not Required to Specifically Identify FMLA When Seeking Leave

This is as per the Department of Labor:

The first time the employee requests leave, the employee is not required to specifically mention the FMLA. However, the employee is required to provide enough information for the employer to know that the leave may be covered by the FMLA, and when and how much leave the employee anticipates needing to take.

Given the newness of the EPSLA, and its relative complexity (being buried with FFCRA), not to mention the anxiety experienced by people who contract Covid-19, it remains to be seen as to whether other courts will follow the reasoning in Gomes. Further the DOL may yet issue guidance on this issue.

Click Here to jump to the U.S. Wage and Hour Division's April 6, 2020 publication entitled Paid Leave Under the Families First Coronavirus Response Act (which, upon a somewhat cursory review, does not appear to require an employee specifically request leave under its auspices).

Woman at Work With Hand Over Mouth In Distress Receiving Bad Notice as Retaliation

When it Comes to Retaliation Claims, Timing is Everything

Woman With Coronavirus Fired After Taking Unpaid Leave Under Family and Medical Leave Act ("FMLA") States Claim for Illegal Retaliation Under FMLA

On the other hand, and just as in the case of Payne v. Woods that we recently discussed, it appears that being sick from Coronavirus constituted a serious health condition under FMLA.

Close Temporal Proximity Between Request for FMLA Leave Due to Coronavirus and Subsequent Termination Enough to State Claim for Illegal FMLA Retaliation

In holding that the employee stated a claim for unlawful retaliatory discharge in violation of FMLA, the court held:

Ms. Gomes' complaint alleges a close temporal proximity to support the proposition that her request for FMLA benefits precipitated her termination. She was exposed to COVID-19 in April and May, contracted COVID-19, requested FMLA, and was fired in May. She is not unlike the employee in Germanowski, "with an unblemished record and steady performance who, shortly after requesting FMLA leave, is terminated by her employer without explanation." Id. Accordingly, the complaint sufficiently supports the causality element of her FMLA retaliation claim.