Ms G was working at a nursing and rehabilitation facility for 3 years when she first heard about the SARS-CoV-2 virus in early March 2020. During the spring of 2020, many of her patients contracted the virus and died.

Ms G was exposed to the virus in April and May and contracted COVID-19 in mid-May. She became very ill and was unable to go to work for a period of time.

In March 2020, the Families First Coronavirus Response Act (FFCRA) was passed. The legislation contains 2 acts that require certain employers to provide employees with paid sick leave, or expanded family and medical leave, for specified reasons related to COVID-19: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Only the latter act amends the Family Medical Leave Act (FMLA) by providing leave for employees unable to work because they need to care for a child “whose school or place of care has been closed, or whose child care provider is unavailable, for reasons related to COVID-19.”

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Concerned about being able to pay her bills, Ms G asked for paid leave from her employer under FMLA (which technically, as a childless person, she was not entitled to). Her employer responded in mid-May by terminating her employment.

After being fired, Ms G sought the counsel of an attorney and sued her former employer, alleging that she was fired in retaliation for invoking FMLA and requesting paid leave.

The nursing home’s attorneys immediately petitioned to dismiss the case, arguing that Ms G had no case because she was not entitled to any relief from FMLA.

The Court Decides

A federal court examined the issues in the case. The court pointed out that under FMLA, discharged employees may bring claims of retaliation against their former employers because they were terminated for invoking their rights under the Act.

To make an FMLA retaliation claim, a plaintiff must show that she availed herself of a protected right under FMLA; she was adversely affected by an employment decision; and there was a causal connection between the employees’ protected activity and the employer’s adverse employment action. In other words, an employee can’t be terminated for simply requesting FMLA leave.

The court also examined whether Ms G had satisfied the 3 prongs for a retaliation claim. The first prong was whether she had availed herself of a protected right under FMLA. The court noted that the FFCRA contains 2 acts providing relief to employees affected by COVID-19. EFMLEA, which amends FMLA, and helps employees with children who can’t work due to COVID-19, and EPSLA, which provides paid leave for workers who themselves contract COVID-19.

Even though Ms G was not actually covered by EFMLEA, the court held that by asking for leave through FMLA, even if she mistakenly believed she was entitled to it, amounted to availing herself of FMLA rights.  The court then went on to hold that an employee who is terminated from her employment would be considered “adversely affected.”