Court Clarifies FMLA Retaliation Standard In Light Of COVID-19 Paid Sick Leave Litigation

On November 2, in the District of Rhode Island, Chief District Judge John J. McConnell, Jr., clarified the legal standard regarding violations of the Family Medical Leave Act (FMLA) in the context of the COVID-19 pandemic, specifically when a childless employee may seek retaliation against an employer when said employer terminates the employee for requesting FMLA paid sick leave. 

The court explained the pertinent facts of the underlying litigation as follows: Plaintiff Carol Gomes sought FMLA leave from the defendant-employer, Steere House, a nursing and rehabilitation center, after contracting the COVID-19 virus. Specifically, Gomes asked for paid sick leave, as provided by the temporary expansion of FMLA provisions to include paid leave by the Emergency Family and Medical Leave Expansion Act (EFMLEA) within the Families First Coronavirus Response Act (FFCRA). Subsequent to the plaintiff’s request for paid sick leave, the defendant terminated the plaintiff in lieu of granting the requested FMLA time-away. In response to the termination, Gomes sued Steere House on grounds that the termination by the defendant stood as illegal retaliation under the FMLA. Theretofore, the defendant moved to dismiss the plaintiff’s case, arguing that the plaintiff lacked entitlement to FMLA leave, a precursory requirement to assert a claim based on FMLA retaliation, because the EFMLEA only provides paid sick leave “to employees who are unable to work because they need to take care of a child ‘whose School or Place of Care has been closed, or whose Child Care Provider is unavailable, for reasons related to COVID-19.’”

The court disagreed, ruling that, while the defendant correctly cited the sick leave eligibility guidelines, a mere request for FMLA leave is all the law requires in order for an FMLA retaliation to survive dismissal. If retaliation protections were centered on the requirement that the plaintiff prove actual eligibility for leave, the judge explained, employees would likely be deterred from even inquiring about FMLA leave, “including eligible employees uncertain of the extent of their rights.” Such a deterrence, the opinion concluded, would create an “ask at your peril” approach that would “frustrate the aims of the (FMLA).” The court concluded by denying the defendant’s motion to dismiss and holding that “Gomes has done enough at this stage of the litigation to show that she ‘availed’ herself of FMLA rights by requesting paid leave under the Act.”

The plaintiff seeks damages, court costs, and attorney’s fees. Gomes is represented by Edward C. Roy, Jr. from Rhode Island. Steere House is represented by Pannone Lopes Devereaux & O’Gara LLC.