Threatening to Expose Co-Workers to COVID-19 Is Really Not Acceptable

The U.S. Court of Appeals for the Fifth Circuit found that the employee’s threats, as well as her stealing time, were legitimate reasons for her termination, contrary to her claims that her employer interfered with her rights and retaliated against her in violation of the Family and Medical Leave Act, among other things.

In Cerda v. Blue Cube Operations, LLC, following her return from an extended medical leave, the employee told her supervisor that she was going to visit her ailing father during her 30-minute lunch breaks to make sure he took his medications and ate. The supervisor subsequently suggested that she talk to Human Resources about FMLA to care for her father. Although she briefly mentioned her desire to explore getting FMLA to the HR manager in passing, she never followed up. After her co-workers complained about her prolonged lunch breaks, the employer investigated and found that the employee had been paid for at least 99 hours that she did not work. During the investigation, the employee missed work after being exposed to COVID-19. When she was required to use her sick days, she threatened to come into work and infect her co-workers the next time she was sick. She was terminated and sued, alleging that the time she missed to care for her father was FMLA-protected.

The Fifth Circuit rejected the employee’s claims. As to the interference claim, it reiterated that, under the FMLA, an employee must give their employer notice of their need or intent to take leave and enough information for the employer to understand that such leave may be covered by the FMLA. In addition, an employer can require an employee to comply with usual notice and procedural requirements, absent unusual circumstances, and discipline an employee for their failure to do so. In the present case, the Fifth Circuit found that the employee never actually requested leave and, at most, inquired about her eligibility for FMLA without expressing a desire or intent to take leave. Moreover, by referring the employee to HR for further information, the supervisor met any obligation to provide the employee with information under FMLA. Thus, there was no interference with her FMLA rights.

The Fifth Circuit also found that the employer offered legitimate, non-discriminatory reasons for the employee’s termination – because she received wages for time that she did not work and threatened to expose co-workers to COVID-19. The employee offered no evidence to show that the reasons were pretext for retaliation.

This case reinforces the principle that employers can and should establish protocols for requesting FMLA. While they must be thoughtful and careful about recognizing when FMLA may apply, and should inform employees of what to do in order to request FMLA, they can hold employees accountable if the employees do not then follow the required process. And the second lesson here is that employers can certainly fire employees for making threats against other employees, as well as for stealing time.