And they’re off – The Plaintiffs Bar has started litigating the March 18, 2020 FFCRA Act!

Many laid off employees will be rehired by their former employers as businesses attempt to return to normalcy following the COVID – 19 shutdown.  Despite good-faith bipartisan efforts, it is uncertain as to when the economy might return to its pre-pandemic state and many employers will face the daunting task of determining which employees to re-hire and which employees will remain unemployed.  Employers should not lose sight of the Federal, State and Local laws that  protect employees from decisions being made on the basis of their membership in a protected class.  Specifically, Federal law mandates that these re-hiring decisions cannot be based upon:

  • Race, color, religion, sex and national origin (Title VII to the Civil Rights Act of 1964);
  • Pregnancy (Pregnancy Discrimination Act of 1978);
  • Race (the Civil Rights Act of 1866);
  • Age (Age Discrimination in Employment Act of 1967);
  • Disability (Title I of the Americans with Disabilities Act of 1990); and
  • Immigration Status (Immigration and Nationality Act as amended by the Immigration Reform and Control Act of 1986)

The Families First Coronavirus Response Act (“FFCRA”) passed on March 18, 2020 adds another level to the decision-making process.  Under the FFCRA, certain employers are required to provide their employees with paid sick time if the employee is unable to work because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Notably, employers are prohibited from discharging, disciplining, or in any other manner discriminating against an employee who has taken leave pursuant to the FFCRA or has taken action to enforce compliance with the FFCRA.

Litigation over the FFCRA has started.  On April 16, 2020, a former director of Eastern Airlines filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania alleging that Eastern Airlines retaliated against her when she requested leave to care for her son who was required to stay at home from school.  This case, Jones v. Eastern Airlines, LLC et al., will be an important test case both as one of the very first cases brought under the FFCRA and because of the unique timing of the alleged termination.  In Jones v. Eastern Airlines, LLC, the Plaintiff alleged that she was terminated on March 27, 2020.  However, the FFCRA contains a provision wherein the act shall take effect not later than 15 days after the date of enactment.  Therefore, this litigation will have important implications on when employers were first required to comply with the FFCRA.

Moreover, many State and Local laws provide even stronger protections from those offered at the Federal level for the protected classes mentioned above.  Employers should refer to their respective employee handbooks, or other written policies, to ensure that they are consistent in their application of their company’s written protocols, if any.  Likewise, it is crucial to continue to actively monitor current events in order to keep informed of the status of any new State, Local or Federal laws pertaining to this issue.  As always, accurate and comprehensive record keeping regarding employees and their performance should be maintained and evaluated by the employer in making its rehiring or termination decision.

As always, our employment team is available to assist with any employment questions you may have.  All nine of our nationwide offices have employment lawyers waiting to help you as our nation returns to work.