Employment Litigation Under the FFCRA: Leave Claims and Employment Rights

Establishing Standards for Safe Working Environment, Retaliation, and Discrimination Claims

Recording of a 90-minute CLE video webinar with Q&A


Conducted on Wednesday, March 31, 2021

Recorded event now available

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Program Materials

This CLE webinar will provide employment counsel with focus on the recent decisions by federal courts on claims brought under the Families First Coronavirus Response Act (FFCRA). The panel will address the standards for preliminary injunctions and motions practice for employment claims related to alleged failures to provide a safe working environment, as well as retaliation, discrimination, and leave claims.

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.

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Outline

  1. FFCRA employment provisions
    1. EFMLEA
    2. Existing federal employment laws
      1. FMLA
      2. FLSA
  2. Current lower court findings
    1. Safe working environment claims
    2. Discrimination claims
    3. Retaliation claims

Benefits

The panel will review these and other relevant issues:

  • How has FFCRA expanded employment requirements related to leave and discrimination claims?
  • What have courts stated is the standard for a safe working environment?
  • When can an employee request leave under EFMLEA?
  • What types of retaliation and discrimination claims have been successfully brought under the FFCRA?
  • How will COVID-19 impact future employment litigation?

Faculty

Brayley, Douglas
Douglas Brayley

Partner
Ropes & Gray

Mr. Brayley advises employers on a wide range of labor and employment matters, including noncompete and trade secret...  |  Read More

Hoffman, Carrie
Carrie Hoffman

Partner
Foley & Lardner

Ms. Hoffman represents and counsels major employers nationwide in all areas of labor and employment law across a wide...  |  Read More

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