Law360 (September 2, 2020, 1:46 PM EDT) -- Two employers in Georgia and Michigan are facing allegations that they fired employees who contracted COVID-19, the latest in a wave of employment litigation related to the pandemic.
Workers in those states have filed unrelated lawsuits claiming their employers — a carpet company and a noodle bar — terminated them after they took time off from work to quarantine after testing positive for COVID-19.
Hundreds of employment lawsuits related to the pandemic are now underway. The wage and hour group at Barnes & Thornburg LLP identified at least 275 workplace lawsuits related to COVID-19 as of Aug. 19, the majority of which dealt with wrongful termination.
Paul Phillips filed suit Monday in Georgia federal court against Engineered Floors LLC, alleging the carpet company fired him while he was in quarantine for COVID-19 in violation of the Family and Medical Leave Act.
Phillips, an operator at the company since 2010, began feeling ill around July 1 and three days later learned he had tested positive for COVID-19, the lawsuit said. On July 6, Phillips said he would need to miss work, according to the lawsuit.
Two weeks later, Phillips' supervisor told him he needed to come back to work, the lawsuit said. But days later, Phillips again tested positive for COVID-19 and was told to quarantine, according to the lawsuit. On Aug. 12, when Phillips called work to talk about returning, human resources said he had been fired, the suit alleged.
Counsel for Phillips was unavailable to comment. Counsel information for Engineered Floors was unavailable, and a company spokesperson did not respond to an interview request.
The company said on social media prior to the lawsuit's filing, "Engineered Floors remains fully committed to protecting the health and safety of our employees and their families."
Similar allegations were leveled in the Michigan lawsuit.
Nicolas Prada, a worker from Ann Arbor, filed suit Friday in Michigan federal court against Trifecta Productions LLC, which does business as Tomukun Noodle Bar. He was a waiter and assistant manager at the restaurant.
"After falling ill and responsibly quarantining, plaintiff was fired for no other reason than contracting the COVID-19 virus," Prada said in his suit.
According to the complaint, Prada started feeling sick around June 24, so he told his manager and took off from work. Three days later, he tested positive for COVID-19, the complaint said.
Prada alleged the restaurant would not pay him for sick leave and fired him, telling him, "For PR reasons it would be best for you not to come back." At one point, the complaint said, the restaurant owner "interrogated" Prada about how he had gotten infected and asked if he had "been out partying and acting irresponsible."
The restaurant said in a July 1 statement on social media that it had learned an employee tested positive for COVID-19 and that it would close "out of an abundance of caution" so that employees could get tested and the restaurant could be professionally cleaned.
The restaurant reopened for carry-out a week later, saying on social media, "We have gone through tremendous lengths to ensure the safety of our employees and customers."
Prada's lawyer, Noah Hurwitz of NachtLaw PC, told Law360 on Tuesday, "He recovered from COVID-19, he hasn't had any other ill effects from that. His pride is really just hurt."
"He was just left without a job, and the restaurant industry's been hit hard, so the idea of finding another job has been difficult for him," Hurwitz added.
A representative for Tomukun Noodle Bar did not respond to a request for comment. The restaurant's business lawyer declined to comment. Defense counsel information was not publicly available.
Prada alleged violations of the FMLA, the Families First Coronavirus Response Act, the Emergency Paid Sick Leave Act, the Fair Labor Standards Act and an executive order by Michigan Gov. Gretchen Whitmer prohibiting employers from firing or retaliating against employees who stay home with COVID-19. He is seeking damages.
The cases are representative of litigation around the nation, where pandemic concerns and a new law have left some employers uncertain of their obligations to workers.
Scott Witlin, a partner and co-chair of the wage and hour group at Barnes & Thornburg, has been tracking coronavirus-related employment cases. He told Law360 on Tuesday that the newness of COVID-19 legislation, such as the Families First Coronavirus Response Act, has made conditions ripe for suit. The FFCRA has expanded paid sick leave and family and medical leave due to COVID-19 for private employers of fewer than 500 workers and certain public employers.
"You've got a lot of smaller employers who now have to comply with laws that they are not used to complying with," Witlin said. "Small businesses are the least equipped to handle these laws," since they don't always have in-house knowledge or the money to hire outside counsel for advice, he said.
Phillips is represented by R. Scott Jackson Jr. and by John McCown of Warren & Griffin PC.
Prada is represented by Noah S. Hurwitz of NachtLaw PC.
Counsel information for Engineered Floors LLC and Trifecta Productions LLC was not available.
The cases are Phillips v. Engineered Floors LLC, case number 4:20-cv-00196, in the U.S. District Court for the Northern District of Georgia, and Prada v. Trifecta Productions LLC, case number 2:20-cv-12348, in the U.S. District Court for the Eastern District of Michigan.
--Editing by Marygrace Murphy.
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