April 18, 2021

Volume XI, Number 108


April 16, 2021

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COVID-19 Leave Plaintiff Denied Discovery of Employer’s Use of PPP Funds

The Barnes & Thornburg Wage and Hour Practice Group’s COVID-19 Related Workplace Litigation Tracker summarized a whopping 772 complaints filed in courts across the United States, broken down into 12 different categories. This week’s spotlight is an update on the progress of a case that was previously summarized on the tracker, O’Bryan v. Joe Taylor Restoration in the Southern District of Florida. 

In O’Bryan, the plaintiff sued his employer for denial of benefits and for retaliation under the FFCRA. In late March 2020, the plaintiff began coughing, and immediately reported his potential COVID-19 symptom to his supervisor. The defendant sent the plaintiff home and told the plaintiff to complete forms for sick leave, which the plaintiff promptly returned. After being quarantined for 14 days, the plaintiff claimed he did not receive any pay he was owed under the FFCRA. The plaintiff then inquired whether he could return to work, as he needed income. The defendant told him to get a doctor’s note clearing him to return. 

The plaintiff obtained a doctor’s note confirming he had self-quarantined for 14 days due to COVID-19 symptoms and could return to work. The plaintiff attempted to give the note to the defendant, but the defendant would not accept it and allegedly told the plaintiff he needed a note specifically saying he was not contagious. The next day, the plaintiff informed the defendant he was being tested for COVID-19. The following business day, while his test results were pending, the defendant terminated the plaintiff’s employment. The plaintiff seeks recovery of the benefits he was allegedly due for paid leave under the FFCRA, as well as damages for alleged retaliatory termination.

During discovery, the plaintiff sought information related to his employer’s use of PPP funds. Specifically, the plaintiff sought information regarding whether the defendant chose not to pay any employees for COVID-related sick leave from its PPP funds, whether the defendant paid other employees for such leave but did not pay him, or whether the defendant terminated employees who sought such leave. 

The defendant argued that its participation in the PPP program was irrelevant and did not have any impact on whether the plaintiff was eligible for paid sick leave under the EPSLA. Ultimately, the court agreed with the defendant and determined that the use of PPP funds was not relevant to the plaintiff’s claims. The court explained that PPP and the EPSLA are separate considerations and involve separate requirements; thus, employers are not obligated to use PPP funds to pay for EPSL.

The O’Bryan decision presents a useful lesson for employers. First, it demonstrates a potential litigation strategy by plaintiffs in COVID-19 related litigation that employers may want to plan for. Second, it provides a roadmap for employers seeking to prevent disclosures in discovery regarding the use of PPP funds. 

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 57



About this Author

Cristina Alma McNeiley Litigation Attorney Barnes & Thornburg Chicago, IL

Attentive and detail-oriented, Cristina Alma McNeiley is a bilingual litigator who devotes herself to thoroughly researching case law, statutes, and relevant information to provide the most targeted representation – regardless of the dispute at hand – for her clients.

Prior to joining Barnes & Thornburg, Cristina honed her skills as a research assistant at Chicago-Kent College of Law, where she assisted in research related to International Law and Women’s citizenship and edited articles that published by the American Journal of Legal History. She is equally skilled in drafting a...


Alex focuses his practice on assisting employers facing various employment litigation issues in federal and state courts. Specifically, he counsels and represents employers in a range of actions involving harassment, retaliation, discrimination, wrongful termination, and wage and hour claims.

He understands the nuances of helping clients document and present a strong case. His litigation experience includes serving as, while with a Michigan law firm, a special assistant attorney general representing the Michigan Department of Transportation in various litigation proceedings. For...

Peter J. Wozniak Barnes Thornburg Chicago  Labor Employment

Pete Wozniak is a vigorous advocate who strives to help his clients navigate issues that can be fraught with challenges as painlessly and efficiently as possible. He is a candid and personable counselor, offering his clients direct advice by leveraging his deep experience performing a broad range of outcome critical functions for complex labor and employment matters.

Pete represents clients across a number of industries, including transportation and logistics, restaurants, retail, manufacturing, and temporary staffing. Handling a number of high profile matters, he identifies the...