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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].

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