As we blogged about here, lawsuits relating to COVID-19 are on the rise.
Family and Medical Leave Act (FMLA) lawsuits and Americans with Disabilities Act (ADA) charges of discrimination are predicted to skyrocket in the coming months. Burbach v Arconic Corp., et al., filed in Pennsylvania federal court, is a good case study.
Employee Burbach was diagnosed with COVID-19 in late March 2020. Due to a 102-degree fever and difficulty breathing, Burbach notified his supervisors of the COVID-19 diagnosis and requested time off from work to recover. Almost all company employees were working remotely.
According to the lawsuit complaint, by March 28, 2020, Burbach was able to resume teleworking and requested the ability to work from his wife's family's home in Slovenia.  On March 31, 2020, Burbach's employer agreed to give him leave to drive back to New York and then fly his family to Slovenia. However, a few days later on April 3, 2020, his supervisor changed her mind, stating the company could not accommodate his request to work remotely from Europe.

When Burbach responded that he believed the company's refusal to accommodate his telework request was related to his COVID-19 diagnosis, Burbach's supervisor replied that she was upset because she had to pick up his slack (extra work) while he was recovering from the illness. She also told Burbach she was upset that he would allege he was being mistreated because of his COVID-19 diagnosis.

Shortly thereafter, Burbach was terminated and notified the company could not accommodate his request to temporarily work remotely from Europe. According to Burbach's attorney, "Burbach was fully capable of working remotely from anywhere in the world, and indeed had worked remotely in this manner on every vacation he had ever taken with defendants." The suit alleges FMLA retaliation and interference with Burbach's FMLA rights.
What can employers learn from this lawsuit?
1. Traditional FMLA and ADA accommodation requirements apply during the pandemic. 
2. If an employee is diagnosed with COVID-19, provide the Notice of Eligibility & Rights and Responsibilities within 5 days, even if it is to notify the employee that he or she is not eligible. Failure to do so may be deemed FMLA interference. 
3. If an ADA accommodation is requested-including a temporary leave of absence, extended telework, or temporary part-time hours-engage in the ADA required interactive dialogue to determine what is reasonable and what is not. 
4. Remember: The interactive process must be fully documented, including any alternative reasonable accommodations proposed by the employer and the specific accommodations ultimately granted.
Have questions about your FMLA and ADA responsibilities during the pandemic? Don't worry, we're here to help!
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