How Do You Define a "First Responder" Under the Families First Coronavirus Response Act ("FFCRA)?
On March 1, 2021, Magistrate Judge Martin C. Carlson, sitting in the United States District Court for the Middle District of Pennsylvania, issued a decision in Sanchez v. Treesmiths, Inc. There, a mother of 2 school aged children was required to seek leave from work due to the fact that her daughter's school was closed, and she could not find child care. She sought paid leave and was soon after fired for being a "no call, no show (even though she had been in constant contact with her immediate supervisor).
The plaintiff filed a lawsuit, asserting that she was entitled to paid leave, or at least unpaid leave, and that her termination was retaliatory and therefore violated the FFCRA. The defendant sought to dismiss the suit on the grounds that it was a "first responder" exempt from the requirements of FFCRA. Here is Judge Carlson's analysis:
Sanchez's claims against Treesmiths assert that Treesmiths is subject to the relevant provisions of the FFCRA, the FMLA, and the FLSA. Treesmiths, on the other hand, argues that the statute exempts "first responders," assert that it is a first responder within the meaning of the law, and the claims against it should be dismissed. For her part, Sanchez contends that the issue of whether Treesmiths is an emergency responder is not proper for disposition on a motion to dismiss and that she should be entitled to further explore the issue through discovery. After review of the complaint and the briefs, we agree with Sanchez and find that at this stage, she sufficiently pleaded her claims against Treesmiths. Accordingly, we will recommend that the motion to dismiss be denied.
As we have noted, Sanchez brings her claims against Treesmiths under the FFCRA, the FMLA, and the FLSA. Her claims under the FMLA and the FLSA are derivative claims that stem from the provisions of the FFCRA. The FFCRA explicitly exempts "[a]n employer of an employee who is an emergency responder" from the definition of "employer". Pub. L. No. 116-127, §3105. The Department of Labor ("DOL"), charged with administering the FFCRA, published guidance regarding the statute, which, as a matter of public record, can be considered on a Rule 12(b) motion without converting it into a motion for summary judgment. Sands, 502 F.3d at 268. The DOL Guidance defines an emergency responder as:
[. . .] anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel ...
(emphasis added) (Doc. 9-4, at 31.).
For its part, relying on exhibits attached to its motion,Treesmiths argues that it is an arborist employed exclusively for public utility customers and therefore it qualifies as public works personnel. However, we conclude that at this stage, where our consideration is confined to the pleadings, that Treesmiths has not established that it falls within the definition of "first responder" in the FFCRA.
. . .
Although Treesmiths cites caselaw in which motions to dismiss have been granted relying upon documents outside the pleadings, none of these cases address the new and novel situation presented here: an arborist's claim of an emergency responder exemption to the FFCRA. Thus, the issues of whether Treesmiths is exempt is still a question here, as it is not itself a public utility company or public works entity. Rather, it provides services exclusively to such entities. The question of whether Treesmiths would qualify as a first responder and therefore be exempt is a murky one which cannot in our view be determined on the pleadings alone but may require development of a factual record. Yet, we have been asked to grant a motion to dismiss in a case rejecting Sanchez's claims on a very sparse record without the benefit of discovery. As "analysis of the law must attend development of the facts," we must approach Treesmiths' argument, which raises a novel question relating to the interpretation of a statute that was enacted less than a year ago, cautiously. Id. (reversing the trial court's grant of defendant's motion to dismiss based on a novel question of law). Therefore, at this early stage of this litigation, we decline to adopt Treesmiths' interpretation of the statute qualifying it as a "first responder" as a matter of law and exempting it from the provisions of the FFCRA. Accordingly, this motion to dismiss should be denied.
In General First Responders Under the FFCRA Are:
Military or
National Guard, Law Enforcement Officers, Correctional Institution Personnel,
Fire Fighters, Emergency Medical Services Personnel, Physicians, Nurses, Public
Health Personnel, Emergency Medical Technicians, Paramedics, Emergency
Management Personnel, 911 Operators, Child Welfare Workers and Service
Providers, Public Works Personnel
You May Find Some of These Articles Worthwhile!
Covid Case of the Week: Carter v. Gardaworld Security Services - Fed. Judge: Employee Who Complains About Employer's Lack of Covid Precautions Not Protected Under FFCRA From Retaliatory Termination (Posted June 4, 2021)
Covid Case of the Week: Haney-Fillipone v. Agora Cyber
Charter School - Teacher Wins Right to Covid-Based Leave - Private Charter
School a "Public Agency" Pursuant to FMLA, Required to Follow FFCRA (Posted
May 22, 2021)
Covid Case of the Week - Gomes v. Steere House - RI
Fed. Judge Rules Employee’s Failure to Specifically Request Paid Leave Dooms
EPSLA Claim, Upholds FMLA Retaliation Claim (Posted May 2, 2021)
Covid Case of the Week - Payne
v. Woods Services - Pennsylvania Federal Judge Finds Positive Covid
Diagnosis is a "Serious Health Condition" Pursuant to FMLA but Is Not
Automatically a "Disability" Under the ADA (Posted April 24, 2021)
Covid Case of the
Week - Kofler v. Sayde Steeves Cleaning Service, Inc. -
Termination of Employee Seeking FFCRA Leave a Violation of Anti-Retaliation
Provisions of FLSA (Posted April 9, 2021)
Covid Case of The Week - Wage
and Hour Claims Added to Retaliation Claim - Aguayo v. Shield N Seal (Posted
April 3, 2021)
Covid-19 Pandemic Class Action Lawsuit Statistics - Wage and Hour Class Actions Most Common