Couldn’t take paid COVID leave in 2020? You may have a lawsuit.

Early in the pandemic, Congress passed the “Families First Coronavirus Response Act” (“FFCRA”), which—among other things—required most employers to provide two weeks (up to 80 hours) of paid sick leave to employees taking time off for qualifying COVID-related reasons. While the Act itself expired at the end of 2020, aggrieved employees can still file a lawsuit against any employers who violated the law while it was binding: between April 1 and December 31, 2020 (after which point providing FFCRA leave became optional). The FFCRA is nestled in the federal Fair Labor Standards Act, and any suit would be alleging a violation of that Act.

The FFCRA created two categories of paid leave, one of which was paid sick leave (Emergency Paid Sick Leave Act or “EPSLA”). 29 C.F.R. § 826.20. (The other category is expanded Emergency Family Medical Leave, which is not relevant here. See our earlier blog, “What does the Families First Coronavirus Response Act mean for you?“.) EPSLA leave, which applied to most public sector employees as well as workers at private companies with fewer than 500 employees, provided for paid sick leave if the employee was unable to work or telework because the employee:

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

§ 826.20(a). While the amount of pay to which an employee is entitled varies according to the type of leave taken from the list above, all types require at least partial compensation. One important exception impacts healthcare workers: employers may exclude employees who are “health care provider[s] or emergency responder[s]” from the EPSLA. Id. at § 826.30(c). The relevant regulations define “healthcare providers” narrowly to encompass only those who actually provide health services to patients, not employees ancillary to healthcare services such as custodians or administrative staff at healthcare facilities, 29 C.F.R. § 826.30(c)-(d). Despite their ability to exclude healthcare workers and emergency responders, however, many employers chose to offer at least some EPSLA protected leave even to healthcare providers.

There are two reasons to sue under the EPSLA: if (1) an employer failed to provide paid sick leave in accordance with the law; and/or (2) the employer discharged, disciplined, or discriminated against an employee for taking EPSLA leave. Id. at § 826.150. The possible recovery for each of these violations is fairly substantial. An aggrieved party who brings a claim for type (1) violations may recover the amount of their unpaid minimum wages, plus an equal amount in punitive damages, plus their attorneys’ fees. 29 U.S.C. § 216(b). Type (2) violations may result in reinstatement with back pay, an additional amount equal to the back pay as punitive damages, promotion and any other equitable relief as may be appropriate to rectify the violation, plus their attorneys’ fees. Id. These remedies are provided by the Fair Labor Standards Act.

Of course, the law requires some reasonableness on the part of the employee, including a requirement that the employee provided appropriate documentation of leave such that their employer understood they had to comply with the law. The documentation—which need not have been provided prior to the leave at issue but which must have been provided “as soon as practicable” after the need for leave arose—should generally contain the employee’s name, dates of requested leave, qualifying reason (of the six types enumerated above), and a written or oral statement that the employee was unable to work because of the qualified reason for leave. 29 C.F.R. § 826.100(a).

The statute of limitations for EPSLA claims under the FFCRA is two years from the date of the alleged violation (or three years if the violation was willful). (The two-year period will begin to expire on April 1, 2022.) If you think you may have a claim under the FFCRA, reach out to KCNF for assistance as soon as possible.