FMLA Shields Long COVID Patients from Workplace Retaliation

Facebook
Twitter
LinkedIn
Print

The Family and Medical Leave Act (FMLA) allows eligible employees to take unpaid, job-protected leave for qualifying family and medical reasons. The FMLA also requires employers to continue providing health insurance coverage to employees during their FMLA leave. To be an eligible for FMLA leave, an employee must work:

  • for a covered employer for at least 12 months;
  • at least 1,250 hours during the 12-month period immediately preceding the leave period; and
  • at a location where the employer has at least 50 employees within 75 miles.

If an employee meets these requirements, they may take up to 12 weeks of job-protected, unpaid leave in a single 12-month period.

Employees are eligible for FMLA leave if they have a “serious health condition that makes the employee unable to perform the essential functions of his or her job” or “to care for the employee’s spouse, child, or parent who has a serious health condition.” Because the FMLA provides “job-protected” leave, an employee must be restored to their original or comparable job with equivalent pay, benefits, and terms once they return from FMLA leave. It is unlawful for an employer to interfere with an employee’s attempt to exercise their rights under the FMLA or to retaliate against an employee for taking or attempting to take FMLA leave.

It is unlawful for an employer to interfere with an employee’s attempt to exercise their rights under the FMLA or to retaliate against an employee for taking or attempting to take FMLA leave.

The FMLA also requires covered employers to fulfill other responsibilities to protect the rights of their employees. First, employers must post a notice for their employees that explains their rights and responsibilities under the Act. Second, employers must include information about the FMLA in their employee handbook and to new employees upon hire. Third, when an employee requests FMLA leave or if the employer learns that an employee’s leave may qualify for FMLA leave, they must inform the employee about their eligibility for FMLA leave and their rights and responsibilities under the Act. If an employer violates any of the FMLA’s requirements, the affected employee can file a civil lawsuit against their employer to seek relief from their employer’s illegal conduct. This relief can include monetary damages, including lost wages and benefits, and liquidated damages. Employees can also seek equitable relief in the form of employment, job reinstatement, and promotion.

Job-protected FMLA leave is distinct from disability insurance benefits, which replace a percentage of an employee’s pay during a period of disability. Click here to read more about the disability benefits that are available for patients and survivors of COVID-19. Click here to learn more about the FMLA from the U.S. Department of Labor.

The coronavirus pandemic has jeopardized the health of countless American workers and has caused many to take medical leave to following an infection with COVID-19. For some people, COVID-19 can cause severe illness, which can qualify as a serious health condition under the FMLA. Unfortunately, some employers have not respected the FMLA rights of their employees, which has resulted in several lawsuits being brought on their behalf. Although courts have not yet issued judgments for many of these cases, they illustrate how the FMLA can protect employees with COVID-19 and long COVID if their employers violate the Act’s requirements. Below are examples of two such cases, Harpin v. Boston Scientific Corporation and Coffin v. Tomball Independent School District.

Harpin v. Boston Scientific Corporation

On May 6, 2022, Robert Harpin filed a federal lawsuit in the U.S. District Court for the District of Massachusetts against his former employer, Boston Scientific. Mr. Harpin worked as a Director of Aviation and experienced a COVID-19 infection in November 2020. Shortly after his recovery from acute illness, Mr. Harpin began experiencing symptoms of long COVID, including fatigue, exhaustion, shortness of breath, joint pain, nausea, changes to his sense of taste, and neuropathic pain. Despite these worrying symptoms, Mr. Harpin’s supervisor threatened to terminate him if he did not recover more quickly. Beginning in February 2021, Mr. Harpin took three weeks of vacation to focus on his health and subsequently applied for FMLA leave in April 2021. In June 2021, Mr. Harpin notified his employer that he was medically cleared to return to work and resumed full-time employment by the end of the month. During Mr. Harpin’s medical leave, his employer shifted the organization’s reporting structure to reassign two employees who had previously reported to him, and these changes remained in place after Mr. Harpin returned from his medical leave. Boston Scientific terminated Mr. Harpin’s employment in September 2021 following a lengthy conflict related to age and disability discrimination claims that Mr. Harpin raised after he became infected with COVID-19. In this lawsuit, Mr. Harpin alleges that his utilization of FMLA leave influenced Boston Scientific’s decision to terminate his employment and that Boston Scientific retaliated against him for taking FMLA leave. Mr. Harpin petitioned the court to declare Boston Scientific’s actions illegal and seeks recovery of lost wages, lost employment benefits, and liquidated damages.

Coffin v. Tomball Independent School District

On May 11, 2022, Sharena Coffin filed a federal lawsuit in the U.S. District Court for the Southern District of Texas against her former employer, the Tomball Independent School District. Ms. Coffin worked for Tomball as a school counselor and experienced a COVID-19 infection in August 2020. Beginning in September 2020, Ms. Coffin began experiencing symptoms of long COVID and these symptoms persisted for several months. Because of her illness, Ms. Coffin needed to take an extended leave from work. However, despite knowing about the absences that Ms. Coffin was accruing and would continue to accrue, Tomball failed to notify her about her eligibility for FMLA leave, which is required. In November 2020, Ms. Coffin began applying for FMLA leave and requested to work remotely. Tomball did not approve Ms. Coffin’s FMLA leave until January 2021 and failed to designate her prior absences as FMLA leave. Subsequently, Tomball disciplined Ms. Coffin for purported performance issues. In this lawsuit, Ms. Coffin alleges that Tomball interfered with her ability to exercise her FMLA rights, failed to notify her of her eligibility for FMLA rights when she began experiencing a serious health condition, and retaliated against her for requesting FMLA leave. Ms. Coffin petitioned the court to declare Tomball’s employment practices illegal and seeks recovery of lost wages, back pay, lost employment benefits, and liquidated damages.

Discipline vs. Retaliation

Both Mr. Harpin and Ms. Coffin have compelling cases against their former employers for retaliating against them for exercising their FMLA rights. However, for their claims to be successful, they must establish a “causal connection” between their use of FMLA leave and the actions their employers took against them. These cases were filed in the First and Fifth Federal Circuits, which have historically applied the “but for” standard to proving causation for FMLA retaliation claims. This standard requires the plaintiff to prove: “but for the exercise of their FMLA rights, would their employer have taken the same actions against them?” The courts will undertake a factual inquiry to examine each employer’s motivation for disciplining Mr. Harpin and Ms. Coffin. The amount of time that elapses between when an employee takes FMLA leave and when their employer took a disciplinary action against them will factor into the a court’s assessment of whether an employer acted with retaliatory intent. Federal courts outside of the First and Fifth Federal Circuits may apply a less demanding standard for assessing an employer’s motivation for disciplining or terminating an employee. For example, courts in the Second Circuit have historically applied the “motivating factor” standard, which merely requires a plaintiff to establish that the employer’s disciplinary action was at least partly motivated by retaliatory intent.

Employees who believe they have been retaliated against for exercising their FMLA rights should be prepared to provide documentation that can establish a comprehensive record of their employer’s actions against them and the factors that could have influenced those actions. Employees with COVID-19 or long COVID will be most successful in pursuing a claim for retaliation if they can prove that they maintained a history of good work performance prior to their FMLA leave. It will also be helpful if they are able to provide evidence that reveals a retaliatory motive for their employer’s actions.

Employees with COVID-19 or long COVID will be most successful in pursuing a claim for retaliation if they can prove that they maintained a history of good work performance prior to their FMLA leave.