Employment Litigation Under the FFCRA: Leave Claims and Employment Rights

Description

As businesses enter 2021, employers must continue compliance with not only well-established employment regulations related to FMLA, discrimination, and retaliation claims, but also continue to comply with the FFCRA requirements related to leave and work requirements while handling the COVID-19 crisis. Less than a year later, the first decisions in employment litigation related to claims driven by COVID-19 have begun to trickle in providing some framework for future use.

Decisions primarily arise on motions to dismiss or preliminary injunctions on claims, including failure to provide a safe working environment. Several lower court decisions indicate that establishing the standards for a sufficient threat of irreparable harm may be difficult for the plaintiff's counsel. Courts have been reluctant to impose their view of proper safety measures on employers due to the lack of information and the contradictory safety suggestions from federal and state authorities.

Leave and retaliation cases attempt to interpret the conflicting employment requirements when enforcing FFCRA with existing federal employment statutes. The interplay among statutes may have surprising results. While an employee may not have leave rights under prior federal laws, FFCRA and several of its provisions, including the Emergency Family and Medical Leave Expansion Act, require employers to scrutinize the request before making employment decisions. The employer must make a fact-based determination, under the FFCRA criteria, that the requested leave would cause severe financial hardship for the business.

Listen as our expert panel discusses these current decisions to guide future claims related to the FFCRA and how it intersects with existing employment statutes. The panel will provide guidance and best practices for plaintiffs' and defendants' counsel for these types of claims to meet the courts' standards for safe working environments, retaliation, and discrimination claims.