FIRED POSITIVE COVID-19 NURSING HOME EMPLOYEE FILES NUMEROUS CLAIMS AGAINST EMPLOYER AFTER BEING FIRED FOR REFUSING TO RETURN TO WORK
Defendants moved to dismiss plaintiff employee’s Family and Medical Leave Act, Americans with Disabilities Act, Pennsylvania Whistleblower Law, and Families First Coronavirus Response Act claims after he was fired for refusing to return to work after testing positive for COVID-19 and court found plaintiff was not exempt from the provisions of the FFCRA and adequately plead his FMLA claim but failed to adequately plead PWL, PHRA and ADA claims. Motion granted in part and denied in part.
Plaintiff worked for defendants as a residential counselor at defendant’s facility. Six patients in the facility tested positive for COVID-19 on April 1, 2020 and plaintiff’s doctor recommended he gets tested and quarantine for 14 days. Plaintiff notified defendant of doctor’s advice. Plaintiff was tested for COVID-19 at work on April 6, 2020, tested positive at work on April 6, 2020, and was told to quarantine for 14 days. On April 13, 2020, defendant’s residential manager told plaintiff he had been cleared and should return to work. Plaintiff explained he had not completed his quarantine time. Manager informed plaintiff that if he did not return to work, his absence would be considered a “call-out.” Plaintiff did not go to work the next day and was fired. He filed a EEOC complaint and was issued a “right to sue” notice and sued alleging FMLA violations and retaliation, interference in violation of the FFCRA, retaliation in violation of the FFCRA, retaliation in violation of the PWL and discrimination and retaliation in violation of the ADA and PHRA. Defendants moved to dismiss.
Defendants argued plaintiff’s failure to allege a serious health condition was fatal to all of his FMLA claims. Court followed the reasoning in Hanlser v. Lehigh Valley Hosp. Network, 795 F.3d 149, and found dismissal of plaintiff’s FMLA claims was improper at this stage. Plaintiff alleged a request for leave and was fired the day after his request.
The parties disputed which definition of “health care provider” applied to plaintiff’s FFCRA claims. Defendants argued the definition in the April rule was in effect at the time plaintiff was fired and he was excluded from bringing claims under the emergency paid sick leave act. Defendants argued in the alternative that plaintiff also met the definition in the September rule. Plaintiff argued the court had to apply the definition in the FFCRA because the April rule was invalidated, and the September rule was not in place at the time of his firing and was not retroactive. Court found the definition “health care provider” in the FFCRA was the appropriate definition to apply in this case and, as a “residential counselor,” plaintiff was not a “health care provider” and was not exempt from the provisions of the FFCRA.
Defendants argued plaintiff’s PWL claims had to be dismissed because defendant was not a “public body” and plaintiff failed to adequately plead wrongdoing or waste. Court found plaintiff only alleged defendant was a “public body” and provided no further supporting facts and the court dismissed the claim. Defendants argued plaintiff’s ADA claims failed because he did not allege that his COVID-19 diagnosis limited any major life activity or that he had any limitation that went beyond being transitory and minor. Court found plaintiff did not allege any facts related to defendants perceiving him as disabled and did not allege any facts to show he requested a reasonable accommodation separate from his FMLA leave request and dismissed the ADA discrimination and retaliation counts. Court further found plaintiff’s PHRA retaliation claim was coextensive with his ADA retaliation claim and dismissed the PHRA claim.
Ref: Digests of Recent Opinions, Pennsylvania Law Weekly, 44 PLW 203, March 3, 2021, Payne v. Woods Serv, Inc. PICS Case NO. 21-0221 (E.D. Pa. Feb 16,2021)
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