(June 12, 2020) - A certified nursing assistant at a Kentucky skilled-nursing facility says she was fired in retaliation for taking time off because she was worried she had contracted the novel coronavirus and did not want to infect patients.
Valdivia v. Paducah Center for Health and Rehabilitation LLC, No. 20-cv-87, complaint filed, 2020 WL 2843974 (W.D. Ky. May 31, 2020).
Jennie Valdivia sued the Paducah Center for Health and Rehabilitation, which does business as Stonecreek Health and Rehabilitation, on May 31 in the U.S. District Court for the Western District of Kentucky, claiming the facility violated the Emergency Paid Sick Leave Act of the Families First Coronavirus Response Act.
The EPSLA, Pub. L. No. 116-127, § 5101, 134 Stat. 178, which went into effect April 1, requires employers with fewer than 500 employees to provide two weeks of paid sick leave for reasons related to COVID-19.
Management failed to excuse absence, suit says
According to the complaint, filed by Valdivia’s legal counsel D. Wes Sullenger, she had worked as a CNA at the Stonecreek Health and Rehabilitation Center in Paducah, Kentucky, since May 2018.
In response to the COVID-19 pandemic, the facility adopted preventative measures to keep its patients and employees healthy, including a check-in station at the front of the building to verify employees had healthy body temperatures before starting their day, the suit says.
Valdivia says she took her own temperature when she reported to work March 23 and found she was running a slight fever of 99.8.
Because she did not feel well, her colleagues at Stonecreek advised her to wait 30 minutes before taking her temperature again, the suit says, and the second reading listed a temperature of 100.1 degrees.
Valdivia says she told her colleagues and manager she was experiencing flu-like symptoms and headed home. Once home, she fell asleep, missing eight calls from the district manager asking her to return for further examination by nurses at the Stonecreek facility, the suit says.
She alleges the Stonecreek director of nursing told her the absence would be unexcused until she submitted proof from a doctor that she was sick.
When she went to her doctor the next day, she learned she had a stomach virus, not COVID-19, and sent her manager photo evidence of her diagnosis, the suit says.
According to the complaint, Valdivia was fired when she returned to work March 25.
Valdivia alleges she was fired under the false pretense that she had been aggressive with patients.
The suit says Valdivia’s absence should have been accepted by facility management to reduce the risk of spreading COVID-19 to patients, and that the choice to fire her was arbitrary and retaliatory.
The complaint asserts claims for violation of the EPSLA, retaliation and common law wrongful termination.
Valdivia seeks damages for the paid time she says she is owed under the EPSLA, plus compensatory and punitive damages incurred by her firing and its resulting emotional and other distress.