The COVID Cases are Coming, the COVID Cases are Coming!

Darrell VanDeusen
Darrell VanDeusen

And so it has begun.  Unless you just arrived from another planet, you know that we’ve been in COVID world for about 18 months.  The lawsuits involving employee behavior, and employer reactions to that behavior, during the pandemic are being filed and decided in state and federal courts.  Here’s one where a physician assistant’s (PA) unprofessional behavior in the early months of COVID led to his termination. 

Unwilling or unable to accept the fact that his actions were inappropriate, the employee claimed that his firing violated the Family Medical Leave Act (FMLA) and his employer retaliated against him for “filing a safety or health complaint,” something that’s protected under Virginia law. Clark v. General Internal Med. Group, 2021 U.S. Dist. LEXIS 156385 (E.D. Va. Aug. 18, 2021).

James Clark had been a PA with the General Internal Medical Group for nearly six years when the COVID-19 pandemic took off in early 2020.  One of the first things that happened in the medical community was the acquisition of personal protective equipment (PPE), particularly N95 Halyard or “Duckbill” masks.  But there were, you may recall, supply chain issues.  The prompt availability of N95 masks in particular was challenging at best.

Mr. Clark was fitted for a mask at the end of February 2020, but he was dissatisfied with how long – over the course of a week – it was taking him to get one.   According to the folks who were tasked with getting the masks, Clark acted ‘“unreasonabl[y],’ because ‘everything that came out he began to question, and he wouldn’t give us the opportunity to provide answers, to provide resources[.]”’  Clark’s “demanding behavior” during this time was described as “unprofessional.”   His approach to the issue was the same regardless of whom he encountered. 

According to the court’s opinion, during that same week Clark told his manager “that if he had been exposed to COVID-19 ‘it would be nice to go home for 3 weeks and get paid. . . .’ During his deposition, Clark acknowledged that he ‘may have said something like that, but, again, it was in the context of [him] declining to go home’ while he waited for the duckbill mask to arrive. . . . Clark clarified that actually taking paid time off ‘wasn’t what [he] wanted at that time. What [he] wanted was to get the PPE that [he] had been asking for at that time for a week.”’

And, one week after he was fitted, a box of between 25 and 50 duckbill masks was delivered to Clark’s office.  Clark’s attitude did not improve, however.  Interactions with him during March 2020 were universally described by those with whom he came in contact as “aggressive” or “unprofessional, belligerent, and causing chaos . . .”   When an email on guidance for screening of patients for possible COVID exposure due to international travel was sent out, Clark responded to clinic staff in an email titled “Covid Testing” that “We don’t have to go off the stupid state criteria (known positive test exposure, or international travel) anymore.”

Clark’s supervisor found it inappropriate for him to refer to the state’s criteria as “stupid.” She also “thought it improper for him to send an email suggesting that staff not follow state criteria, particularly given that he was ‘not in a supervisory capacity.’”

Perhaps not surprisingly, these sorts of behaviors in such a short time led to the conclusion in mid-March that Clark’s employment should end.  He was placed on administrative leave for an extended period of time and terminated in July 2020.

Then came the lawsuit.  Clark alleged a FMLA retaliation and a violation of Virginia Code § 40.1-51.2:1, which provides that “[n]o person shall discharge or in any way discriminate against an employee because the employee has filed a safety or health complaint or has testified or otherwise acted to exercise rights under the safety and health provisions of this title for themselves or others.”  The court made quick work of both claims in granting the employer’s motion for summary judgment.    

First, the court noted that the “FMLA protects the rights of covered employees to take up to 12 workweeks of leave during any 12-month period due to certain family or health-related causes, including ‘a serious health condition that makes the employee unable to perform the functions of the position of such employee.’”  Here there was no indication that Clark requested or took FMLA leave.  He was asked directly during his deposition whether at any point he requested leave due to exposure or potential exposure to COVID-19. He responded “I did not” to both questions.  The court pointed out that “[f]ailure to ask an employer for leave due to a medical condition is fatal to an FMLA case.”

Clark’s argument that his comment that it would be “nice to stay home and get paid” if he contracted COVID-19 was protected by the FMLA, was rejected by the court.  Clark had admitted in his deposition that he made this statement “in the context of … declining to go home and be paid,” and that going home “wasn’t what [he] wanted at the time.”  Moreover, “[t]o the extent plaintiff claims that questions about hypothetical future sick leave ‘rais[e] the inference of taking FMLA leave,’” said the court, “his claim has no statutory or case law support. Nothing in the FMLA points to the broad protections plaintiff seeks.”

Second, the regulatory language interpreting Virginia Code § 40.1-51.2:1 provides that a plaintiff proceeding under this statute must prove that his termination “would not have taken place ‘but for’ [his] engagement in protected activity.” 16 VAC 25-60-110(A).  Here, while the employer conceded that Clark’s objecting to inadequate PPE during the COVID-19 pandemic might qualify as “fil[ing] a safety or health complaint” – protected activity under the statute – there was  overwhelming evidence Clark was fired for his unprofessional behavior toward other staff members and because of the confusion caused by his unauthorized directives to staff and inaccurate reports that his facility had no PPE.

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