Lawsuits Rolling in Against Employers Who Refused to Provide FFCRA Paid Sick Leave

By Alyssa L. Levy

The Families First Coronavirus Response Act (FFCRA) required employers to provide paid sick leave and expanded family and medical leave for reasons related to COVID-19. That mandate expired on December 31, 2020. The mandated paid time off included occasions when a healthcare professional advised the employee to self-quarantine due to concerns related to COVID-19. Litigation under the FFCRA is just beginning to surface, and one such lawsuit reminds employers of the importance of not ignoring a healthcare professional’s advice, even if they disagree with it.    

In Dusenberry v. Liberty Risk Consulting, LLC, an employee alleged that his employer fired him in November 2020 when he failed to come to work after his doctor instructed him to quarantine. The employee’s doctor instructed the employee to quarantine even though the employee, himself, had not been in close contact with anyone who tested positive, and the employee had initially tested negative for COVID-19 after his potential exposure. The lawsuit claims that when the employee attempted to comply with the doctor’s orders, his supervisor informed him that an “extra few days at home [wasn’t] going to prevent the imaginary spread of a sickness you don’t have,” and ordered him to report for work. The supervisor also refused the employee’s work from home request. When the employee followed his doctor’s quarantine instruction, the employer deemed him to have “no call no showed,” and terminated his employment. 

The supervisor’s frustration based on what appeared to be an attenuated risk of actual infection is understandable. Unfortunately, it appears likely a court may find a violation of the FFCRA here, based on the allegations in the Complaint. While great ambiguity hovers over the hastily-drafted FFCRA, this case is a cautionary tale reminding employers to take necessary measures to keep employees safe – measures which may be different for each employer and each employee, depending on a multitude of factors (e.g. industry, telework capacity, safety measures, health risks, etc.) – and not to recklessly ignore a doctor’s instructions when doing so. 

Employers should also remember that some states have enacted their own COVID-19 paid leave laws, which present yet another minefield for employers to navigate. Further, while the FFCRA paid leave mandate expired at the end of 2020, there is a great deal of talk about an expansion of that mandate in 2021. Stay tuned and stay safe!