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Ability to Sue an Employer under the Families First Coronavirus Response Act



On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), which took effect on April 1, 2020, and will remain in effect through December 31, 2020. Among other things, the FFCRA seeks to assist both employees and employers affected by COVID-19.

The FFCRA includes, among other provisions, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”). The EFMLEA expands an employee’s leave rights under the Family Medical Leave Act (“FMLA”). The EPSLA requires certain employers to provide paid leave to employees if such leave is related to COVID-19.

Can I sue my employer for an EFMLEA violation?

The EFMLEA modified the existing FMLA to address conditions created by the coronavirus pandemic. Thus, the EFMLEA is not an entirely new law that stands on its own, but is actually reliant upon, and utilizes a majority of, the already enacted FMLA provisions. One specific example is that the EFMLEA does not contain an enforcement provision, but utilizes the corresponding FMLA provisions.

Although an eligible employee may sue a covered employer for EFMLEA violations, an employee’s ability to do so is subject to an additional limitation that is not present under the FMLA. An eligible employee cannot sue an employer for an EFMLEA violation(s) if the employer does not meet the FMLA’s original “employer” definition. Under the FFCRA, an employer must employ less than five hundred (500) employees, among other requirements, to fall under the Act. However, under the FMLA, an “employer” is any person engaged in commerce or in any industry or activity affecting commerce who employs fifty (50) or more employees for each working day during each of twenty (20) or more calendar workweeks in the current or preceding calendar year. If an employer fails to meet the FMLA definition, they are not subject to an employee’s civil suit for an EFMLEA violation, but are still required to provide leave if they otherwise meet the FFCRA’s employee numerosity requirement and other applicable requirements.

For example, if an employer employs forty-nine (49) employees, that employer must provide EFMLEA leave to its eligible employees, but may not be sued for violations of the same. If the employer does meet the FMLA “employer” definition, they must provide leave and can be sued directly by an employee for prohibited acts (i.e. interference and discrimination) under, and with remedies provided by, the FMLA. Furthermore, inability to file suit does not mean redress is entirely unavailable for violations as an employer may still be subject to other remedial action.

Can I sue my employer for an EPSLA violation?

Unlike the EFMLEA, the EPSLA contains its own enforcement provisions. Under the EPSLA, a covered employer that fails to provide paid EPSLA leave shall be considered to have failed to pay minimum wages and be subject to penalties under the Fair Labor Standards Act (“FLSA”). If an employer willfully engages in a prohibited act(s), it will have violated the prohibited acts section of the FLSA and be subject to penalties thereunder. Such recoverable damages can include unpaid wages and overtime, liquidated damages, employment or reinstatement, promotion, attorneys’ fees, and/or an injunction.

If you feel your rights under the Families First Coronavirus Response Act have been violated, or if you have any questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us online or by calling us at (205) 319-9724.

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