Employee’s Pandemic-Related FMLA Claims Survive Dismissal

Garrett Wozniak
Garrett Wozniak

At the risk of stating the obvious, employees and employers alike have faced challenges throughout the COVID-19 pandemic.  Many have approached these challenges with an open-mind, flexibility, compassion.  A recent decision from a federal court in Virginia provides a useful reminder of these principles in the context of a worker’s claim that his former employer interfered with his rights under the Family and Medical Leave Act (FMLA).  Crawford v. Creative Cost Control, Corp., No. 7:21-cv-00419 (W.D. Va. Nov. 1, 2021). 

Christian Crawford worked as a crew chief for Creative Cost Control, Corp. a SERVPRO franchise in Roanoke, Montgomery, and Pulaski, Virginia.  During his five years as a crew chief, Crawford had stellar performance.  He also occasionally, and with permission, missed work to care for his brother, who required daily care because of a health condition.   

The company closed for two weeks in April 2020 with the onset of the pandemic.  Crawford’s brother quarantined at home during this time.  Crawford sought leave under the FMLA to care for his brother.  The company denied the request and terminated Crawford the same day for job abandonment.

Crawford then filed suit under the FMLA and the Families First Coronavirus Response Act (FFCRA).  He alleged that the company’s actions constituted FMLA interference and retaliation, and interference, discrimination, and retaliation under the FFCRA.  The FMLA prohibits employers from interfering with an employee’s FMLA rights and from retaliating against an employee who exercises their FMLA rights.

Considering Crawford’s allegations as true, as the court must do at the motion to dismiss stage, the court concluded that Crawford sufficiently alleged his FMLA interference and retaliation claims.

The FMLA affords eligible employees up to 12 weeks of leave during a 12-month period to “care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.”   There was no dispute that Crawford’s brother had a serious health condition.  The company argued, however, that the FMLA claims failed because Crawford did not stand in loco parentis to his brother.  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.”  Those who stand in loco parentis “include those with day-to-day responsibilities to care for and financially support a child . . . .”  As recited by the court, “[t]he key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child.”  The factors considered include “(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.” 

The company argued that Crawford providing daily care, but not financial support,  to his brother meant he did not stand in loco parentis to his brother.  On this issue, Crawford alleged that his brother is over 18 years old and incapable of self-care because of his paralysis, and that he “put himself in the situation of a parent” to his brother by providing his daily bowel and bladder care.  His brother was “gainfully employed” and Crawford did not provide financial support.  These allegations, the court found, were enough to show that Crawford’s FMLA leave request fell within the FMLA — Crawford was not required to provide financial support in order to obtain in loco parentis status.  Following this conclusion, the court denied the company’s motion to dismiss Crawford’s FMLA claims.

The way in which an employer handles leave requests and makes employment decisions can go a long way to avoiding litigation.  While this case is not over, Crawford’s allegations paint a picture of a quickly made termination decision without consideration of Crawford’s personal situation of which the company was aware.  There may be more to the story, but perhaps with a little more compassion, the company would not be facing Crawford’s lawsuit. 


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