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Archive for the ‘Employment Law Blog – KY’ Category

Kentucky Federal Court Rules That There is No EFMLEA Leave for Refusal to Work Due to COVID-19 Safety Concerns

Posted on: November 4th, 2020

By: Caitlin McQueen Tubbesing

The United States District Court for the Eastern District of Kentucky recently issued one of only a handful of federal court opinions[1] addressing the labor provisions in the Families First Coronavirus Response Act (“FFCRA”). In Mindy Thornberry v. Powell County Detention Center, the court dismissed Plaintiff’s complaint alleging dissatisfaction with an employer’s COVID-19 safety protocols, and a refusal to appear for work due to those concerns, because those allegations do not amount to either (i) a request for leave under the law, or (ii) an articulable claim for alleged violations of FFCRA’s family and medical leave provisions.  

Thornberry, a substance abuse counselor at the Powell County Detention Center, was fired after refusing to show up to work unless her employer demonstrated that adequate COVID-19 protocols were in place. Thornberry returned to work for one day after her employer’s work-from-home order expired, but stayed home the next day due to illness and expressed concerns that the lack of protections at the detention facility was putting her and her family at risk. She clarified that she was not resigning but told her employer that she could not work in unsafe conditions and that she would not work until precautions were taken. Thornberry was dismissed by the detention center on April 1, 2020.[2]   

The Complaint alleged FMLA interference and retaliation, and violations of FFCRA’s Emergency Family and Medical Leave Expansion Act (“EFMLEA”). The Complaint also referenced FFCRA’s Emergency Paid Sick Leave Act (“EPSLA”) but conflated EFMLEA and EPSLA provisions, and incorrectly referenced one of EPSLA’s six COVD-19 circumstances triggering paid sick time (government-ordered quarantine or isolation and COVID-19 symptoms) as a reason for leave under the EFMLEA.

The EFMLEA temporarily amends the FMLA to allow certain employees 12 weeks of leave per year “because of a qualifying need related to a public health emergency.” 29 U.S.C. § 2612(a)(1)(F). The “public health emergency” must be COVID-19 related. Id. at § 2620(a)(2)(A). An employee demonstrates qualifying need if they are “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” Id. at § 2620(a)(2)(B).

Plaintiff’s Complaint failed to allege that she notified her employer that she had to stay home to care for her child. Rather, the pleadings showed only that she told her employer that she would not work until health and safety precautions were taken to protect herself, her family, and clients. Thornberry improperly equated her demands for increased precautions before returning to work with requiring leave to care for her child. The alleged concerns for her family’s health due inadequate safety precautions could be relevant to an EPSLA claim but were unrelated to EFMLEA claims.

Additionally, Thornberry’s refusal to work was not a request for leave.  She did not allege she actually made a request for EFMLEA leave –  a necessary predicate to prevail on either the FMLA interference or retaliation claims under 29 U.S.C. § 2615(a)(1)-(2). Because she did not, and entitlement to leave under the EFMLEA includes only leave to care for a child whose school has been closed due to COVID-19, the Complaint failed to state a claim for relief because there were no facts from which the Court could draw an inference of defendants’ liability for the misconduct alleged.

FFCRA’s labor provisions are effective until December 31, 2020. As COVID-19 cases continue to rise, FFCRA claims may increase. The Thornberry opinion underscores the importance of knowing the eligibly requirements for leave under FFCRA, including the important distinctions between the EFMLEA versus EPSLA. Employers must remain vigilant and be aware of their obligations under the law.

If you have questions or would like more information, please contact Caitlin Tubbesing at [email protected].


[1] See e.g., Kofler v.Sayde Steeves Cleaning Serv., 20210 WL 5016902 (M.D. Fla. Aug. 25, 2020), and New York v. U.S. Dep’t of Labor, 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).

[2] Interestingly, the Court opined in dicta that dismissal may have also been proper because EFMLEA was not in effect until April 2, 2020, and the conduct alleged in the Complaint occurred on or before her termination date of April 1, 2020. Although this argument was not raised by the defendants, the Court suggested that defendants could not be liable for “interference with rights” under 29 U.S.C. § 2615, if the rights asserted never applied to Thornberry’s employment.

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

The Sixth Circuit Takes A Narrow Construction Of The Computer Fraud And Abuse Act And Sides With Employees

Posted on: September 18th, 2020

By: Caitlin Tubbesing and Barry Miller

The Computer Fraud And Abuse Act (CFAA) is a federal law that provides it is a violation for an individual to “intentionally access a computer without authorization or exceed authorized access” to get protected information.  Employers have attempted to rely upon the CFAA for years to pursue former employees who stole (or destroyed) confidential information from the employer’s computer system prior to leaving for a competitor. 

The issue that courts have struggled with is as follows: Does an employee who lawfully accesses his employer’s computer system, but engages in actions with a nefarious intent within the confines of that access violate the Computer Fraud And Abuse Act? That is a lot to chew on, right? Numerous federal courts agree it is a rubbery issue, which is why there are varying decisions by both district and appellate courts across the United States dealing with CFAA claims against former employees.

On September 9, the Sixth Circuit weighed in on this dispute when it held (in Royal Truck & Trailer Sales v. Kraft) that employees who took proprietary information from the network their employer gave them access to prior to departing for a competitor did not violate the Computer Fraud and Abuse Act (“CFAA”). In this case, the Sixth Circuit initially observed that the employees were allowed to access Royal Truck’s system because they still were employees when they did so. So the meatier question for the Sixth Circuit is whether employees exceeded their authorization when they accessed information for an improper purpose.   

The Sixth Circuit answered “no” because  the language of the CFAA required Royal Truck to show that the employees used their permitted access to gain information that they were not entitled to have. The information they acquired—quotes for Royal Truck customers—was information they could have when they were employees. The Sixth Circuit joined the Second, Fourth, and Ninth Circuits in narrowly interpreting the statute in this manner.

The Royal Truck court acknowledged, however, that other circuit courts—the First, Fifth, Seventh, Eighth, and Eleventh—read the statute more broadly, and would likely find the Royal Truck employees liable under the CFAA. The Supreme Court has accepted a criminal case, Van Buren v. United States, to be heard in the October 2020 term. While Van Buren is a criminal case, it still allows the Supreme Court to resolve this conflict in how the statute is interpreted. Until then, employers will have to understand the circuit split when assessing whether to pursue this type of claim against former employees.

If you have questions or would like more information, please contact Caitlin Tubbesing at [email protected] or Barry Miller at [email protected].

Kentucky Federal Court Dismisses Former Employee’s Wrongful Termination Suit Related to Use of CBD Oil

Posted on: June 15th, 2020

By: Curt Graham

As CBD products continue to gain popularity across the country, employers are likely to have questions regarding the scope of their drug testing policies. A recent decision from the United States District Court for the Western District of Kentucky addressed this issue in the context of a wrongful termination claim.

The plaintiff in Amox v. S. Ky. Rural Elec. Coop. Corp., No. 1:18-CV-00120-GNS, 2020 U.S. Dist. LEXIS 56367 (W.D. Ky. Mar. 31, 2020) was terminated after a drug test came back positive for Tetrahydrocannabinol (“THC”). The plaintiff alleged his test was positive only because he had used CBD oil to treat pain and inflammation and he filed a wrongful termination suit against his former employer. Relying on the “public policy” exception to Kentucky’s at-will employment doctrine, the employee claimed public policy in Kentucky establishes an affirmative right to use CBD oil outside of the workplace that cannot be infringed. The basis for his argument was that Kentucky’s legislature had declared hemp to be an “agricultural crop” and that certain CBD products had been removed from the list of controlled substances in Kentucky.

The Court rejected these arguments, finding that none of the cited statutes addressed an employee’s ability to use CBD oil outside of the workplace without consequences and that there was no indication that the Kentucky General Assembly intended to prevent an employer from terminating an employee for failing a drug test stemming from his use of CBD oil. Accordingly, the wrongful termination claims were dismissed on summary judgment. There do not appear to be any reported decisions from other jurisdictions addressing this novel issue, but similar challenges are likely to be asserted relating to the enforcement of workplace drug policies.

If you have questions or would like more information, please contact Curt Graham at [email protected]