Key to remember:  ​It takes a while for a claim to trudge through the judicial system, so FFCRA-related claims will be around for months to come.

Applies to: Employers with fewer than 500 employees.

Impact to customers: Covered employers should ensure that their practices were compliant and their documentation for leave under the FFCRA (as amended by the Consolidated Appropriations Act, and the American Rescue Plan Act) are accurate, complete, and up to date to help defend against any action.

A recent court case serves as a reminder that cases filed under the Families First Coronavirus Response Act (FFCRA) are still around, even though the law (as amended) has been expired since September 30, 2021. Employees are no longer entitled to the paid leave (that ended on December 31, 2020) and employers may no longer receive tax credits for providing the paid leave, but some employers will pay the price for missteps taken regarding the leave.

Case in point

Colleen, an administrative assistant, had a son whose school was closed in 2020 due to the pandemic. Therefore, she needed to be available at home to help her son in schoolwork. Instead of asking for time off, however, Colleen asked for a work arrangement which would allow her to work some days in the office and other days remotely.

Colleen’s request was granted.

Nonetheless, she was terminated shortly thereafter, and she sued, claiming the employer violated the FFCRA — particularly the Expanded Family and Medical Leave (EFML) provisions.

The employer argued that Colleen never requested leave under any of the related statutes (FFCRA or, EFML), and that she had no right to enjoy the paid leave, because she could continue to work (or telework) while caring for her child.

The employer pointed to the Department of Labor’s guidance that, to the extent an employee is able to work while caring for her child, paid sick leave and expanded family and medical leave are not available.

Colleen requested a hybrid work accommodation. No request for leave was made, and no statement was provided as to whether she was unable to work because of a qualified reason to leave, which prevented her from qualifying for the leave protections related to her son’s schooling needs.

Colleen also tried to argue that she would have requested leave if the employer would have denied her hybrid accommodation request. But that is mere speculation, and the court ruled in favor of the employer.

Takeaway

This employer documented the request for a hybrid remote accommodation as it was used as an exhibit in the case. Since this documentation supported the employer’s argument that it did not violate the FFCRA, it helped win the day. This is only one case; more to come!

Collazo v. Ferrovial Construccion PR, LLC, District Court of Puerto Rico, No. 20-1612, September 30, 2021.