In a sign of litigation to come, one of the first cases alleging pay violations under the Families First Coronavirus Response Act (“FFCRA”) was brought this week in the United States District Court for the Northern District of Indiana. The plaintiff in the case worked for the Kroger grocery chain, and alleges that she was fired after supposedly contracting COVID-19.
Regular readers of this blog who have a passing familiarity with the new requirements of the FFCRA may be scratching their heads, as the paid sick leave and expanded family and medical leave provisions of the FFCRA only apply to employers with fewer than 500 employees. Kroger, as a multi-state grocery chain, has more than 500 employees.
The plaintiff attempts to overcome this potentially case-ending difficulty by proceeding under a theory of estoppel. Specifically, the plaintiff’s complaint states:
“Although Defendant employees [sic] more than 500 people, it’s assertion of adherence to the FFCRA’s provisions and policy changes that align with the FFCRA’s guidance prohibit Defendant from denying the coverage to its employees. Defendant is bound by the FFCRA by way of estoppel.”
Kroger had purportedly instituted a policy under which employees affected by COVID-19 were eligible for up to fourteen paid days off, and amended its attendance policy temporarily to provide that attendance points for absences associated with COVID-19 symptoms would be removed from employees’ attendance records once acceptable medical documentation was provided.
This case could serve as a test of plaintiff’s novel application of the theory of estoppel, and also as a barometer for whether courts will expand the scope of the FFCRA to exempted employers who instituted common-sense policies in response to the COVID-19 pandemic. The complaint is available here