Virginia Lawyers Weekly VA Lawyers Weekly
An employee’s Family and Medical Leave Act interference and retaliation claims have survived his employer’s motion to dismiss.
Christian Crawford, a crew chief for a fire and water cleanup and restoration company, alleged his employer refused to allow him to quarantine at home to avoid exposing his paralyzed brother to COVID-19.
U.S. District Judge Thomas T. Cullen said Crawford pleaded sufficient facts about his daily care responsibilities for his brother to support his claim that he stood in loco parentis.
Crawford provides his bother with care that he is unable to provide for himself, and this “is care of the type a parent or primary caregiver would provide to a child or an adult with a serious health condition,” Cullen explained.
The decision from the Western District at Roanoke is Crawford v. Creative Cost Control Corp. (VLW 021-3-503).
Primary source of care
Christian Crawford was a crew chief for SERVPRO for more than five years. During this time, he occasionally got permission from his supervisors to miss work to provide regular bowel and bladder care for his brother, Chance. Chance has been paralyzed for more than 40 years and depends on Crawford for daily care.
As his brother’s primary source of care, Crawford requested leave to quarantine at home to avoid exposing Chance to the virus at the start of the pandemic in early 2020.
SERVPRO denied this request, terminated Crawford’s employment on April 27, 2020.
Crawford filed suit, claiming violations of the FMLA and the Families First Coronavirus Response Act, or FFCRA.
SERVPRO filed a motion to dismiss, saying Crawford failed to state a claim upon which relief can be granted.
In loco parentis
Crawford said SERVPRO interfered with his rights under the FMLA, and discriminated and retaliated against him when it ended his employment in violation of the FMLA.
SERVPRO argued Crawford’s FMLA claims should be dismissed. Crawford, they said, only claimed he provided daily care for Chance, not that he provided financial support. The company added that Crawford failed to properly allege in loco parentis status because he did not claim he had the necessary intention to serve in a parental role to Chance.
But Crawford argued that financial support is not required under the FMLA; rather, it is just one factor to consider when determining if a person stands in loco parentis.
Crawford also pointed out a Department of Labor fact sheet that says “persons who are in loco parentis include those with day-to-day responsibilities to care for or financial support a child.”
The text in the regulation offers an adequate basis to show Crawford properly alleged in loco parentis status, the judge concluded. In fact, the regulation provides that “[p]ersons who are ‘in loco parentis’ include those with day-to-day responsibilities to care for and financially support a child …,” Cullen pointed out.
Since “the term ‘includes’ is generally non-exhaustive, the court does not interpret this regulation as requiring both day-to-day responsibilities and financial support for one person to stand in loco parentis to another,” Cullen said. “Rather, the regulation provides a non-exhaustive set of considerations for determining whether someone stands in loco parentis.”
As such, for someone to stand in loco parentis under the regulation’s plain terms, “financial support is not a necessary requirement.”
FFCRA claims fail
Crawford wasn’t as successful with his FFCRA claims.
Under the FFCRA, employers whose employees are “emergency responders” are excluded. Those employers, therefore, are exempt from providing expanded family and medical leave to their employees.
SERVPRO maintains it is an emergency responder and therefore could not violate FFCRA by refusing to grant Crawford leave to care for his brother.
In his complaint, Crawford said that SERVPRO “does not provide care to patients,” but that it specializes in “proactive viral pathogen cleaning” of public spaces and that SERVPRO employees are “trained and experienced in biohazard decontamination.”
But Crawford’s specific factual allegations about his employer were fatal to his FFRCA claims, according to Cullen.
“Based on these allegations, the court finds that these employees are ‘emergency responders’ under FFCRA,” Cullen said. “That finding excludes SERVPRO from FFCRA’s definition of ‘employer’ as a matter of law and, as a result, FFCRA’s requirement to provide expanded family and medical leave does not apply to SERVPRO.”
