Well, COVID refuses to go away. So, today, our employment discrimination lawyers review the recent United States District Court for the Northern District of Ohio decision in Bibb v. Cuyahoga County Board of Developmental Disabilities, No. 21-CV-2235, 2022 WL 16793334 (N.D. Ohio Nov. 8, 2022).
In this case, Sileena Bibb had been employed by the Cuyahoga County Board of Developmental Disabilities (the “County”) from 2009 until her termination in 2021. Bibb worked in multiple positions throughout her employment, ultimately becoming a developmental specialist at the time of her termination. Prior to her tenure as a developmental specialist, Bibb had not received any negative performance reviews.
During her time as a developmental specialist, Bibb had requested leave under the Family and Medical Leave Act (“FMLA”) to care for her father. Shortly after requesting and being approved for FMLA, Bibb’s supervisor issued her a negative performance review and was subsequently placed on a performance improvement plan (“PIP”) that was to run from September 3, 2020, until November 30, 2020. Bibb met with her supervisor weekly to discuss her progress on the PIP and on November 18, 2020, Bibb’s supervisor sent her an email stating that the PIP was going to be closed out on November 24, 2020. Unfortunately, Bibb tested positive with COVID-19 on November 20, 2020, and resumed full-time work on December 16, 2020.
After returning to work, Bibb’s supervisor informed Bibb that her PIP was being extended until January 29, 2021. The listed reason on the PIP for the extension was “due to holiday’s [sic] and illness.” Subsequently, the County terminated Bibb’s employment for failing her PIP. As a result, Bibb sued for retaliation under the Families First Coronavirus Act (“FFCRA”), as well as FMLA retaliation.
After filing suit, the County filed a motion for summary judgment to have the case dismissed. In denying summary judgment, the Bibb court held that a jury could find that Bibb was terminated in part because she took FFCRA leave after testing positive for COVID-19.
What is the FFCRA?
The FFCRA was signed into law on March 18, 2020, in response to the COVID-19 pandemic. The FFCRA went into effect on April 1, 2020 and was effective through December 31, 2020. The FFCRA provided, among other things, that covered employers were required to provide paid sick leave for seeking treatment and quarantining due to COVID-19. Section 5104 of the FFCRA also stated that it “shall be unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who (1) takes [FFCRA] leave….”
How do I prove FFCRA retaliation?
Best Employment Lawyer/Attorney Answer: Courts have determined an employer who retaliates against an employee for taking FFCRA leave is considered to have violated the Fair Labor Standards Act (“FLSA”) (Best Law Read: How Broad Are The FLSA Antiretaliation Provisions?, What Happens If My Job Retaliates Against Me For My Reporting Wage Violations?). Accordingly, to show a prima facie case of FFCRA retaliation, an employee would have to show that (1) she engaged in protected activity under the FFCRA; (2) her exercise of this right was known by the employer; (3) the employer took an employment action adverse to her; and (4) there was a causal connection between the protected activity and the adverse employment action. See generally Bibb, 2022 WL 16793334 at *18-19.
Once the employee establishes her prima facie case, the employer has to state a legitimate, non-discriminatory reason for the adverse employment action. Finally, it falls on the employee to prove that the employer’s legitimate, non-discriminatory reason for the adverse employment action was pretextual.
What should I do if I get fired for getting COVID-19 now?
Best Employment Lawyer Answer: While the FFCRA is now expired, there may be other avenues for recovery under different laws (Best Law Read: Can I Be Fired For Getting COVID?, Does The ADA Protect Transitory Conditions Like COVID Or A Broken Leg?). If you have been terminated after testing positive for COVID-19, call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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