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Attorney fired after bout with COVID, request to work remotely from Slovenia, advances ADA, FMLA claims

By Kathleen Kapusta, J.D.

The assistant general counsel of a lightweight metals engineering and manufacturing company, who was fired after he requested leave to recover from COVID-19 and then to travel to Slovenia so he could work remotely from his wife’s home, plausibly pleaded FMLA interference and retaliation claims as well as disability discrimination and failure-to-accommodate claims under the ADA. Denying his employer’s motion to dismiss, a federal court in Pennsylvania also allowed his claim against another company to advance under a joint employment theory (Burbach v. Arconic Corp. , September 22, 2021, Eddy, C.).

Prior to its April 1, 2020, split into two companies—Howmet Aerospace and Arconic Corporation—the attorney was employed by Arconic, Inc. After the split, he began working for Arconic Corporation as the assistant general counsel. He was expected to relocate from New York to the company’s Pittsburgh, Philadelphia, headquarter after the COVID-19 pandemic.

Office closure. Prior to the split, Arconic, Inc., on March 13, 2020, closed its New York City office due to the pandemic. A few days later, it closed its headquarters and directed all employees to work remotely. While the attorney, around that same time, developed a mild sore throat, he continued to work, often he claimed, into the early hours of the next day.

Florida. Worried about his health and the health of his family, he decided to temporarily move to a relative’s vacant apartment in Florida. He told his supervisors he would be off from work and offline for large portions of March 18 and 19 during the drive there. His supervisors, he alleged, approved his request for two days off. During that time, the employee checked emails while his spouse drove and worked remotely at night.

Deteriorating health. By March 20, he had developed a high fever and was experiencing difficulty breathing. Nonetheless, he continued to work until early evening when he went to the ER where he was diagnosed with COVID-19. He was placed on bed rest and told to avoid stress until his breathing improved. He told his supervisors about his diagnosis. His condition worsened and on March 23, he requested time off to recover. According to the attorney, he was not notified of his FMLA rights. He also claimed his supervisor blamed him for problems keeping up with last-minute corporate spinoff tasks.

Slovenia. By March 27 or so, the attorney began to feel better and his doctor told him he could leave quarantine if he remained symptom free for another 72 hours. Between March 28 and March 30, he claimed he was required to work full-time to make up for work missed during the time he was on leave. Around that same time, he learned he could no longer stay at the Florida apartment and his doctor advised him not to return to New York. He then decided to move to Slovenia for the remainder of the time he was required to work remotely.

Fired. Although he claimed his supervisors approved his request for a three-day leave to recover from COVID and move to Slovenia, they later told him the company could not accommodate him working from Europe even though all employees were directed to work remotely into May. The attorney purportedly told his supervisor that he believed the company’s refusal to accommodate him was because he was impaired by COVID-19 during a difficult time for the company and that because of this, he was unable to work as much. Shortly thereafter, he was fired.

FMLA interference. In his subsequent lawsuit against Arconic, the attorney first claimed the company interfered with his rights under the FMLA. For its part, Arconic argued that he did not adequately plead that he was denied benefits to which he was entitled and even if he had, he did not show he was prejudiced by such interference. The court, however, found he clearly alleged he was entitled to up to 12 weeks of leave because he was suffering from COVID-19, a serious health condition that rendered him unable to perform his job duties.

While Arconic argued that he was not “required to use accumulated paid leave to account for missed work during his illness and recovery,” and was not denied FMLA leave, he alleged that he informed his supervisors he was ill with COVID-19 and sought medical leave to recover but was never told about his rights under the FMLA and thus he was denied FMLA leave. The court found it would be premature at this stage to determine as a matter of law that he was not prejudiced by the company’s failure to inform him of his ability to take FMLA leave. Noting that he alleged that if had he known he could take up to 12 weeks of leave, he would have taken that time to fully recover, the court found he met his burden at the motion to dismiss stage.

FMLA retaliation. As to his FMLA retaliation claim, the court found he adequately alleged that he invoked his right to FMLA leave. He told his supervisors he was experiencing shortness of breath, fever, and extreme exhaustion; he was hospitalized; and he was diagnosed with COVID-19. This, said the court, was suggestive that he invoked his right to FMLA leave as he provided notice he was suffering from a serious medical condition and sought time to recover.

He also adequately alleged that he suffered an adverse action, as he was terminated from his position, as well as facts suggestive of causation. He claimed he first sought medical leave on March 20, told his supervisors his condition had worsened on March 23 and requested time away from work to recover, and was terminated on April 3 after his supervisor told him of the issues he had caused while he was on leave.

Disability discrimination. Arconic next argued for dismissal of the attorney’s ADA disability discrimination claim because his COVID-19 illness was a temporary, non-chronic impairment of short duration that did not substantially limit any major life activity. But the Third Circuit, observed the court, has acknowledged that the duration of an impairment alone is not determinative of whether it is a disability but rather it is only one factor to consider. Here, said the court, the attorney alleged that he suffered from at least one physical impairment that substantially limited one or more major life activities by alleging he had trouble breathing. Thus, he pleaded he suffered from a disability. “The effect of this impairment on Plaintiff, ‘whether he was in fact disabled’ and the duration of that disability is not properly resolved at the motion to dismiss stage.”

Also rejected was Arconic’s contention the attorney’s regarded-as claim failed because his condition was transitory and minor. But whether a condition is transitory and minor is an affirmative defense to an ADA claim, which courts rarely consider on a motion to dismiss. Further, it was not apparent from the face of the complaint that his impairment was transitory and minor with an actual or perceived duration of six months or less.

Failure to accommodate. As to the attorney’s failure-to-accommodate claim, Arconic argued that he was not denied a reasonable accommodation his request to relocate to Slovenia to access family-provided childcare was not covered by the ADA. Although the court found this argument well-taken, it could not determine as a matter of law that he could not have been reasonably accommodated. That, observed the court, is an affirmative defense that is not capable of resolution without considering matters outside the complaint like the hardships granting such an accommodation would place on Arconic. The attorney’s allegations that his request to temporarily relocate to Slovenia was originally granted before being revoked, that all corporate employees were working remotely, and that he could perform his job in Slovenia were sufficient to survive dismissal.

ADA retaliation. Likewise, his ADA retaliation claim could advance as he sufficiently pleaded facts suggesting he engaged in protected activity when he requested a temporary relocation to Slovenia and his request was originally granted before it was revoked. He also alleged that he had safer access to health care there, said the court. While Arconic pointed to his allegations about having better access to childcare, his true motivations for requesting the temporary relocation were not appropriate to resolve at this stage.

Claim against Howmet. Finally, the court refused to dismiss his claim against Howmet, which argued that it was not his employer when he was terminated. The court found it premature to determine as a matter of law that Howmet was not the attorney’s employer during operative times.