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Employee with COPD, fired upon end of leave taken to avoid unmasked coworkers, advances FMLA claim

By Kathleen Kapusta, J.D.

A county clerk in West Virginia who suffers from COPD, and who took leave in order to avoid contact with unmasked coworkers during the COVID-19 pandemic, plausibly alleged that her termination on the day she was scheduled to return to work was unlawful FMLA retaliation. Denying her employer’s motion to dismiss, the federal court in that state also found she plausibly alleged a claim for disability discrimination under state law as well as a public policy wrongful discharge claim under the FMLA (Romans v. Wayne County Commission, September 1, 2021, Chambers, R.).

Leave request. According to the employee, in March 2020, her physician requested that she be allowed to work from home for 30 days due to her chronic obstructive pulmonary disease, which was an established risk factor for COVID-19. For seven months, however, her employer allegedly failed to respond to this request.

Executive Order. In July, the West Virginia governor issued an Executive Order requiring, amongst other things, that individuals over the age of nine wear masks in certain indoor settings. Despite this EO, the employee alleged, not only did her employer not require employees to wear masks, her coworkers mocked her for wearing one and her supervisor, the county sheriff, derided her in front of others when she requested that he enforce the mask mandate.

FMLA leave. In late July, the employee’s physician documented her COPD diagnosis, her need to avoid exposure to COVID-19, and her need to be placed on FMLA leave through late October in order to avoid contact with her unmasked coworkers. Her request was granted and she was scheduled to return to work on October 29.

Termination. On October 26, seven months after her initial request to work from home, the sheriff denied it. The next day, she called the county and asked whether employees were complying with the mask mandate. Because the sheriff was unavailable, she asked that he return her call. When she did not hear from him, she did not return to work on October 29 because, she alleged, she was waiting for his response. That same day, she received a certified letter from the sheriff terminating her.

FMLA retaliation. Suing the county and the sheriff, the employee first asserted claims for discrimination and retaliation under the FMLA. Refusing to dismiss her FMLA retaliation claim, the court found she sufficiently alleged that she engaged in a protected activity when she notified the county that she suffered from a serious health condition and requested FMLA leave. Further, she suffered an adverse action when she was terminated. She also alleged that the termination decision was motivated by her protected FMLA activity and that this was evidenced by the fact that the sheriff refused to speak with her, refused to enforce the mask mandate or allow her a reasonable accommodation, and fired her immediately upon the expiration of her leave.

Although the county argued that she was fired because she did not return to work, the employee, contending that was pretext, pointed to the temporal proximity between her termination and the end of her leave. Viewing the facts in the light most favorable to her, the court denied the county’s motion to dismiss.

Equitably estopped? Citing DOL guidance stating that an employee cannot stay home under the FMLA in order to avoid exposure to COVID-19, the county next argued that the employee was not entitled to FMLA leave as a matter of law. For her part, the employee contended that because the county granted her leave request, it was equitably estopped from arguing that she was not entitled to FMLA leave.

Refusing to address whether to apply equitable estoppel at this point in the proceedings, the court noted that it had to first determine whether the employee detrimentally relied on the county’s representation that she was entitled to leave. “If Plaintiff was unwilling to report to work even if she knew she was not entitled to FMLA coverage, she did not detrimentally rely upon Defendant’s representation that she was entitled to leave under the Act and cannot invoke equitable estoppel,” the court explained.

Disability discrimination. Turning to the employee’s disability discrimination claim under the West Virginia Human Rights Act, the court noted that she alleged her COPD is a health condition that substantially limits certain major life activities or, in the alternative, that her employer regarded her as having an impairment; that she could perform her job’s essential functions with or without reasonable accommodation; and that she was terminated and her disability, or her employer’s perception of her disability, was a motivating factor in the termination decision.

She also claimed that her employer took an adverse action against her by refusing to accommodate her by requiring its employees to comply with the mask mandate, refusing to communicate with her concerning other potential accommodations for her COPD, and terminating her without making any reasonable efforts to accommodate her. This, said the court, was sufficient to adequately state a claim under the WVHRA.

Wrongful discharge. As to the employee’s public policy wrongful discharge claim, the county argued that she could not maintain a common-law wrongful discharge claim and a WVHRA claim based on the same conduct. Although the court agreed, it pointed out that her claim was based on violations of policy under the FMLA. Noting that in Vandervander v. Verizon Wireless, LLC, it previously held that the FMLA does preempt state law claims and no “cases in West Virginia ha[ve] established that a plaintiff could not maintain a FMLA claim and a common law discharge claim,” the court denied the county’s motion to dismiss this claim as well.