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Law360 (July 10, 2020, 6:27 PM EDT) -- A beachside restaurant near Charleston, South Carolina, has been sued by a former server who says he was fired after he left work to get tested for COVID-19, invoking a new law Congress passed to let workers take job-protected leave to deal with the novel coronavirus.
Justin Mackie, who said he worked as a server at Coconut Joe's in Isle of Palms, alleged that he felt short of breath one day at work and left to see a doctor because he was worried he could have COVID-19. Mackie said he told a manager that he was going to see a doctor and was not quitting. However, one of the managers texted him to say they interpreted his action as a resignation because he left without permission, he said in the complaint filed Thursday under the Families First Coronavirus Response Act.
The doctor said Mackie had a panic attack, according to the complaint.
Mackie also filed class claims alleging that Coconut Joe's didn't follow rules for structuring a tip pool that would let it pay less than minimum wage to employees who counted on gratuities. The restaurant required tipped employees to share their tips with kitchen employees who are barred under the Fair Labor Standards Act from receiving a cut of shared tips, he said.
Coconut Joe's closed for several weeks starting in March, in response to state orders shuttering restaurants and bars to slow the spread of COVID-19, the complaint said. In preparation for reopening, it brought Mackie and others back to perform maintenance work, relying on Paycheck Protection Program funds, it said.
When the restaurant reopened in early May, Mackie was assigned to work as a cook, even though his experience primarily was as a server, he said.
The FFCRA, which President Donald Trump signed into law in March, requires employers to provide employees who experience COVID-19 symptoms and seek a diagnosis up to two weeks of paid leave, along with additional provisions requiring paid or unpaid time off under other circumstances, such as when an employee has to choose between going to work and caring for children whose school is closed, or who has been advised to quarantine because of a possible coronavirus exposure. These provisions are set to expire at the end of 2020.
The law is so new that there isn't a lot of court precedent or other guidance for how to implement it, creating headaches for employment attorneys who want to advise clients.
Counsel for Mackie couldn't be reached for comment. A manager who answered the phone at Coconut Joe's said the restaurant isn't taking media requests.
Mackie is represented by Marybeth Mullaney of Mullaney Law.
Counsel information for Coconut Joe's could not be determined Friday.
The case is Mackie v. Coconut Joe's IOP LLC et al., case no. 2:20-cv-02562, in the U.S. District Court for the District of South Carolina.
--Editing by Jay Jackson Jr.
For a reprint of this article, please contact reprints@law360.com.
