The COVID-19 pandemic has been a fertile source of new litigation: challenges to mask mandates, challenges to vaccine mandates, construction of child custody visitation agreements in light of COVID-19, assertion of the defense of impossibility in response to attempted enforcement of a contract, etc. Recently, a federal district court in Virginia addressed whether an individual stated a cause of action against his employer for firing him after the employer denied the individual’s request to quarantine at home in order to avoid exposing his adult paraplegic brother to the coronavirus. The court in Crawford v. Creative Cost Control Corp., Case No. 7:21-CV-00419, 2021 WL 5049768, 2021 Wage & Hour Cas.2d (BNA) (W.D. Va. Nov. 1, 2021), held that plaintiff Christian Crawford (“Christian”) stated claims for (1) interfering with rights provided under the Family and Medical Leave Act (“FMLA”), and (2) retaliation or discrimination in violation of the FMLA. However, he did not state a claim under the Families First Coronavirus Response Act (“FFCRA”).
Christian performed “excellent” work as a crew chief for SERVPRO for five years. As alleged in the complaint, SERVPRO specializes in “disaster cleaning” and “biohazard decontamination” of restaurants, businesses, and other public spaces. During his employment with SERVPRO, Christian periodically received permission to miss work to provide regular bowel and bladder care for his brother, Chance Crawford (“Chance”), who had been paralyzed and confined to a wheelchair for 40 years due to a football injury.
SERVPRO, like many businesses across the country, closed its doors for two weeks in April 2020 in response to the COVID-19 pandemic. At the same time, Chance began to quarantine at home based on medical advice. Christian requested leaves pursuant to the FFCRA and the FMLA so that he could protect his brother and provide for his medical needs. SERVPRO denied his request and fired him on April 27, 2020, the day SERVPRO reopened. Chance remained quarantined for another two and a half months until his employer provided him a private entrance to his office, allowing him to quarantine in the office. Following termination of his employment, Christian brought suit alleging that SERVPRO interfered with his rights under the FMLA, discriminated and retaliated against him in violation of the FMLA, interfered with his rights under the FFCRA, and discriminated and retaliated against him in violation of the FFCRA.
The FMLA is intended to promote the national interest in family integrity by allowing eligible employees to take up to 12 work weeks of leave during any 12-month period in order to care for a spouse, son, daughter, or parent of the employee with a serious health condition. 29 U.S.C. § 2612(a)(1)(C). Under the FMLA, “son or daughter” includes “a child of a person standing in loco parentis” who is either under 18 or “18 years of age or older and incapable of self-care because of a mental or physical disability.” Id. § 2611(12) (emphasis added). “Persons who are ‘in loco parentis’ include those with day-to-day responsibilities to care for and financially support a child.” 29 C.F.R. § 825.122(d)(3) (emphasis added). SERVPRO did not dispute that Chance’s paralysis was a “serious health condition,” but it contested the notion that Christian acted in loco parentis to Chance. Crawford, 2021 WL 5049768, at *2-3.
The court noted that the existence of an in loco parentis relationship is found in the intent of the party assuming the status of parent and pointed to the following factors that could be considered: “(1) the age of the [person]; (2) the degree to which the [person] is dependent on the person claiming to be standing in loco parentis; (3) the amount of support, if any, provided; and (4) the extent to which duties commonly associated with parenthood are exercised.” Id. at *3. Focusing on the element of financial support, SERVPRO argued that Christian did not act in loco parentis with respect to Chance, because he did not provide financial support. The court ultimately found that financial support was not a necessary precondition and, instead, looked to the above-quoted language of 29 C.F.R. § 825.122(d)(3), particularly the use of the word “include.” The court explained that because the word “include” is “generally non-exhaustive,” it would not interpret the regulation to require both day-to-day responsibilities and financial support for a person to stand in loco parentis. 2021 WL 5049768, at *4. Accordingly, the court allowed Christian to go forward with his FMLA claims.
The court disposed of the FFCRA claims much more expeditiously. The FFCRA requires certain employers to provide eligible employees with two weeks of paid sick leave or expanded family and medical leave for certain reasons related to COVID-19. In particular, § 5102(a)(4) of the FFCRA requires an employer to give paid sick leave to an employee who is unable to work due to a need to care for an individual who has been advised by a healthcare provider to self-quarantine as a consequence of COVID-19. However, the FFCRA does not apply to employees “with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency.” 29 C.F.R. § 826.30(c)(2)(i). Thus, although Christian was caring for Chance, who had been advised to self-quarantine due to health concerns, the complaint’s allegations that SERVPRO performed “disaster cleaning” and “biohazard decontamination” in public spaces proved “fatal” to Christian’s FFCRA claims, and the court dismissed those claims. 2021 WL 5049768, at *5-6.