By Carolina Bolado

Law360 (October 20, 2020, 6:07 PM EDT) -- A health insurance company on Monday urged a Florida federal court to dismiss a former executive's claims that she was fired for taking medical leave and requesting to work remotely during the COVID-19 pandemic, arguing she never asked for any kind of medical leave and was never forced to come into the office.

Doctors HealthCare Plans Inc. said it could not have violated the Family and Medical Leave Act when it fired Julie Ferro in June because she had never requested time off under the law, which states it is the employee's responsibility to notify the employer that leave is required.

"Ms. Ferro failed to provide that required notice, and this fact alone is fatal to both her claims," the insurer said.

DHCP also argues CEO Rafael Perez never forced Ferro to come into the office to work during the pandemic. The company says he even spoke to Ferro in late May, as the office reopened post-lockdown and employees began coming back, to confirm she would continue to work from home. Despite this, Ferro returned to the office on May 26 of her own volition, according to DHCP.

In her suit filed in August, Ferro said she has rheumatoid arthritis and high blood pressure, among other medical issues, and that she was dismissed because she has previously dealt with serious medical problems and likely will again.

But DHCP says she never informed the company of any conditions that would involve continuing treatment. Her employer knew of a November 2019 weeklong hospitalization caused by an adverse reaction to a medication she had taken to treat a sore on the side of her mouth, but she worked from home after leaving the hospital and never requested additional time off, the insurer said.

"By Ms. Ferro's own allegations, it was little more than a discrete occurrence her doctors were able to effectively treat within a week," it said. "Indeed, she admits that she was already working from home after being released from the hospital."

The company says she failed to allege what health-related issue would require her to take leave during the pandemic or what actions the company should have taken other than letting her work remotely.

Ferro claims that as concern over the virus escalated in March, Perez dismissed COVID-19 as a flu-like illness and said the health crisis was being overhyped owing to it being an election year. He issued work-from-home policies but also maintained that some people must still physically come into the office, according to the suit.

Ferro said she was allowed to work from home after requesting the accommodation and providing a doctor's letter, but when the office reopened in late May she felt "pressured" to report to work in person.

Though Perez assured employees the office would be safe, the facility lacked basic sanitary supplies and Ferro was "shocked" to see maskless colleagues abandoning social distancing practices, her suit alleged.

Ferro also said her boss had made comments about her health before the onset of the pandemic.

"There is always something with you," Perez allegedly told her at one point.

In the suit, Ferro described multiple instances in which she had worked from home or had brief hospital stays due to her health issues, and said she had never been advised of her FMLA rights or she would have applied for leave.

Perez fired her on June 8, saying "things were not working out" and giving vague reasons, including a hand motion that Ferro took to indicate her up-and-down health, she said in the suit. The firing came despite an excellent recent performance review, a $25,000 raise at the end of 2019 and a $10,000 performance bonus just two weeks before she was dismissed, she noted.

Ferro's attorneys Lawrence Pearson and Bryan Arbeit said the motion to dismiss is based on a misrepresentation of the FMLA's requirements.

"The motion's claim that Mr. Perez was unaware that Ms. Ferro was hospitalized for a serious medical condition is demonstrably false," they said in a joint statement. "We are confident that Ms. Ferro's claims will move forward to discovery and look forward to holding Mr. Perez and his company accountable for their unlawful conduct."

An attorney for DHCP and Perez declined to comment beyond what was in the filing.

Ferro is represented by Lawrence M. Pearson and Bryan L. Arbeit of Wigdor LLP.

DHCP is represented by Eric S. Boos and Daniel B. Rogers of Shook Hardy & Bacon LLP.

The case is Ferro v. Doctors HealthCare Plans Inc. et al., case number 1:20-cv-23449, in the U.S. District Court for the Southern District of Florida.

--Additional reporting by Amanda Ottaway. Editing by Marygrace Murphy.

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