September 17, 2021

Volume XI, Number 260


September 17, 2021

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September 15, 2021

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Federal Court Puts Employee Suit Under Wrong COVID Statute Behind Bars

Now in its 21st week, the Barnes & Thornburg Wage & Hour Practice Group’s COVID-19 related workplace litigation tracker has summarized and catalogued nearly 400 complaints nationwide. More than six months after the filing of the first COVID-19 related complaints featured on our tracker, these cases are beginning to make their way through the courts, as at least three cases have been decided under the FFCRA. One such case on our tracker is Thornberry v. Powell County Detention Center, where Judge Danny C. Reeves of the Eastern District of Kentucky dismissed the plaintiff’s complaint because, in the court’s view, she conflated provisions of the Families First Coronavirus Response Act’s (FFCRA) Emergency Paid Sick Leave Act (EPSLA) with the provisions of the Emergency Family and Medical Leave Expansion Act (EFMLEA).

In Thornberry, the plaintiff alleged that she was employed as a substance abuse counselor at the Powell County Detention Center, and that her job required her to meet in-person with inmates to conduct a residential counseling program. The plaintiff claimed that “these in-person meetings became complicated in mid-March by the COVID-19 pandemic,” because she and her colleagues were ordered to stay home from work between March 18 and March 30 while the facility reacted to the situation. The plaintiff alleged that she returned to the facility for one day, but stayed home due to illness the following day. That day, the plaintiff claims that she expressed concerns to her supervisor about the lack of COVID-19 protections at the facility, which could place her or her family at risk of infection. The plaintiff clarified with her supervisor that she would return to work once appropriate COVID-19 protections were in place. The next day, the plaintiff was “dismissed,” and subsequently filed suit, alleging that her employer interfered with her rights under the EFMLEA, and retaliated against her in violation of the EFMLEA. Specifically, the plaintiff alleged that she was entitled to EFMLEA leave, because she experienced COVID-19 symptoms and was ordered to quarantine.

The court, however, dismissed her complaint, explaining that an employee is entitled to EFMLEA leave only if “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” The court determined that the “Amended Complaint contains no allegation that she informed the defendants that she had to stay home to care for her child.” Instead, according to the court, the plaintiff did not allege that she requested leave to take care of her child; rather, she alleged only that she refused to work in unsafe conditions. The court also noted that the complaint’s reference to COVID-19 symptoms and government-ordered quarantine were circumstances that would entitle the plaintiff to EPSLA leave, but not EFMLEA leave. As such, the court determined that because the plaintiff did not allege that she requested leave to care for a school-aged son or daughter whose school has closed due to COVID-19, her complaint under the EFMLEA must be dismissed.

There are several cases summarized on the tracker where the complaints allege violations of the EFMLEA and the FFCRA. The Thornberry court’s decision reiterates the eligibility requirements for leave that are available to employees under the FFCRA and under the EFMLEA. As courts continue to grapple with these lawsuits, contributors to the COVID-19 Related Workplace Litigation Tracker will continue to monitor any further developments that may impact employer’s rights and obligations under the FFCRA. 

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 269

About this Author

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...

Mark Wallin, Attorney, BT, Chicago, Labor Employment
Of Counsel

In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of...


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...