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Kroger Worker Who May Have Had Covid-19 Brings Job Bias Suit (1)

April 28, 2020, 5:43 PMUpdated: April 28, 2020, 8:05 PM

Kroger Co. fired a worker at an Indiana distribution center after she was diagnosed as possibly having Covid-19, in violation of federal medical leave law and newer legislation addressing the global pandemic, a new federal lawsuit alleges.

The lawsuit marks one of the first private claims under a virus relief law that went into effect at the start of April. Eastern Airlines LLC and metal fabrication company Steel It LLC have also been sued by workers alleging violations of that law.

Ariel Robtoy says she began developing Covid-19-like symptoms over the weekend of April 4 and 5. She called Kroger to say she would be absent on Monday April 7 and had a virtual visit with a doctor, who prescribed medicine and gave her a note excusing her from work until at least April 9, she says. The note described her symptoms as including shortness of breath, “a known symptom of” Covid-19, she says.

She provided the note to Kroger, but it was rejected because it didn’t include the term Covid-19, Robtoy says in a complaint filed Tuesday in the U.S. District Court for the Northern District of Indiana.

Robtoy had another virtual medical visit April 7 because she began to experience additional suspected Covid-19 symptoms, the lawsuit says. She received a second doctor’s note, which ordered her to remain off work and self-isolate for two weeks, and indicated she either had an upper respiratory infection or Covid-19, Robtoy says.

That note was passed along to Kroger the same day as her live-in boyfriend and co-worker provided a note saying he too had to self-isolate and would miss work for two weeks, the suit says. They contacted Kroger again when they realized they weren’t being paid during their absences and her boyfriend was told he could keep his job if he used his accrued vacation time to cover his leave.

Because she didn’t have any remaining vacation time to use, she was fired, Robtoy says. That violated the Families First Coronavirus Response Act, the lawsuit says.

The act applies to Kroger even though it has more than 500 employees and typically wouldn’t be covered by the pandemic-inspired law, Robtoy says. That’s because the company voluntarily amended its emergency leave guidelines to permit employees affected by Covid-19 up to 14 days of paid leave, she says.

Her termination also violated the Family and Medical Leave Act, which requires employers to reinstate workers who take leave for a serious health condition if they are able to return to their job or a similar position when their leave expires, the suit says.

New Virus Law

The FFCRA, as implemented by the Department of Labor, requires companies with fewer than 500 employees to provide 80 hours of paid sick leave to those unable to work due to Covid-19 and 10 weeks of partially paid sick leave to employees who need to care for a child whose school or daycare is closed from the virus.

Robtoy’s complaint comes as attorneys are anticipating an onslaught of litigation from workers arguing they are covered by the new paid leave entitlements. More lawsuits are likely as workers continue to be educated about the law and as shuttered companies gradually start reopening.

The fired Kroger worker is testing whether a large company that would otherwise be exempted due to having more than 500 workers may actually be bound by the law because it opted to tailor its employee leave policy to the law. DOL representatives didn’t immediately respond to a request for comment as to whether a company’s voluntary compliance with the law causes it to forgo the exemption.

The department’s Wage and Hour Division has been responding to thousands of calls throughout the pandemic, WHD Administrator Cheryl Stanton said last week. In a recent statement, she said her agency has begun processing hundreds of worker complaints under the FFCRA.

Causes of Action: FMLA; FFCRA.

Relief: Compensatory and liquidated damages; attorneys’ fees and costs.

Response: Kroger didn’t immediately respond Tuesday to Bloomberg Law’s request for comment.

Attorneys: Christopher C. Myers & Associates.

The case is Robtoy v. Kroger Co., Bankr. N.D. Ind., No. 1:20-cv-00173, complaint filed 4/28/20.

(Updated with additional reporting.)

To contact the reporters on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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