Corey Forbes, an employee of Best Buy, tested positive for COVID-19 in 2021 and utilized the company's specific pandemic policy, which allowed him to stay home until ten days had passed and symptoms resolved. After being cleared to return to work on December 20, 2021, Forbes failed to appear on that date and the following two days. Although he texted that he would return on December 22, he missed that shift as well without providing prior notice. When his supervisor inquired about the absence, Forbes cited an arrest warrant for unpaid traffic tickets. Best Buy terminated Forbes for violating its standard attendance policy, which mandates that employees notify management at least one hour before a shift and results in termination after three consecutive days of unnotified absence. Forbes sued, claiming his termination was retaliatory under Colorado's Healthy Families and Workplaces Act and the Public Health Emergency Whistleblower Act. The district court granted summary judgment to Best Buy, and Forbes appealed to the Tenth Circuit.
The Tenth Circuit conducted a de novo review of the summary judgment, applying the standard that requires a showing that the employer had a right to judgment as a matter of law and that no genuine dispute of material fact existed. The court focused on whether Forbes presented evidence of retaliatory intent or complaints regarding a public health order. The court noted that Forbes admitted he was cleared to return on December 20 but missed three straight days without giving notice. The court rejected Forbes's reliance on evidence regarding sick pay and accrued leave, stating that these facts did not suggest retaliation for using the COVID-19 policy or complaining about a public health order. Furthermore, the court dismissed Forbes's assertions regarding a state regulation and the Federal Families First Coronavirus Response Act because he failed to provide any legal explanation or argument for them. The court concluded that the undisputed facts showed Forbes violated the attendance policy, and no fact-finder could reasonably infer retaliation against him for invoking the COVID-19 policy.
The decision affirms that employers may enforce attendance policies consistently even when an employee has recently utilized pandemic-related leave, provided the termination is based on the failure to follow notification procedures rather than the illness itself. Employers are protected from retaliation claims if they can demonstrate that the adverse action was taken for a non-retaliatory reason, such as policy violation. The ruling leaves open the question of what specific evidence is required to prove retaliatory intent in similar contexts, effectively raising the bar for plaintiffs to survive summary judgment in employment retaliation cases involving pandemic policies.
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