By Kevin Penton

Law360 (September 28, 2020, 3:02 PM EDT) -- A former in-house counsel has pushed back against his ex-employer's bid to duck a lawsuit over his firing after he contacted COVID-19, telling a Pennsylvania federal court that the metals company took issue with his lack of work while he was sick.

Daniel Burbach Jr. alleges that Arconic Corp. violated the Family and Medical Leave Act by asking him to craft a "to-do list" for others to follow during his absence, then firing him in part because he did not complete the task, according to the opposition brief he filed Friday with the Western District of Pennsylvania.

His former employer contends that Burbach was actually fired because he wanted to work remotely in Slovenia despite company officials telling him that he would not be allowed to do so, a matter not related to FMLA.

But the attorney alleges that because he was entitled to up to 12 weeks of leave under the FMLA, Arconic also violated the law by failing to tell him of his rights, which could have allowed him some time to recuperate in the European country, according to the opposition brief.

"Had Burbach been informed he was entitled to take up to 12 weeks leave to recover from COVID-19, he would have been able to structure his leave in a way that either would have permitted him to rest and recuperate and have access to adequate medical care in Slovenia," the opposition brief reads, "or to take leave in intermittent fashion to facilitate busy times while still recuperating from the coronavirus."

Burbach sued Pittsburgh-based Arconic and Howmet Aerospace Inc. in May. As the companies were undergoing a transition amid his firing, the attorney contended Friday that the two entities should be considered his joint employers and both be held liable for claims of interference and retaliation under the FMLA.

Arconic and Howmet in August urged the court to dismiss the amended complaint that Burbach filed earlier in the month, arguing that the lawyer had Arconic's blessing when he decided to relocate to Miami soon after the office shifted to working remotely in March. Burbach also received support when he developed a 102-degree fever, was diagnosed with COVID-19 and needed time away from work to recover between March 23 and 27, according to the companies.

But the lawyer lost the support when he stated on March 28 that he wanted to go to his spouse's family home in Slovenia to work for the remainder of the crisis, according to a brief supporting the motion to dismiss.

"Plaintiff was unable to perform his job duties because he chose unilaterally to leave the country and was not permitted to work remotely outside of the continental United States," the brief reads. "Plaintiff's inability to perform his job duties without accommodation prevents him from stating a claim for FMLA retaliation, as this does not constitute an adverse employment action."

"Arconic never complied with the specific notice requirements under the FMLA," said Samuel J. Cordes, an attorney representing Burbach, to Law360 on Monday. "If it wanted Burbach to not be somewhere, either working or convalescing while he was on medical leave, it had to tell him. Remarkably, it never even did that."

Counsel for Arconic and Howmet could not be reached for comment on Monday. 

Burbach is represented by Samuel J. Cordes of Rothman Gordon PC.

Arconic Corp. and Howmet Aerospace Inc. are represented by Molly E. Meacham of Babst Calland Clements & Zomnir PC.

The case is Burbach v. Arconic Corp. et al., case number 2:20-cv-00723, in the U.S. District Court for the Western District of Pennsylvania.

--Additional reporting by Lauren Berg. Editing by Gemma Horowitz.

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