We represent victims of reverse discrimination and anti-DEI whistleblowers

Many people associate the Family and Medical Leave Act (FMLA) with extended absences to welcome a new child or deal with a serious health situation within one’s family. Often, that is why someone applies for time off under FMLA, so they take one long break secure in the knowledge that their job will be there when they return. Each case is unique however, and some employees suffer from chronic conditions that flare up at different times, necessitating sporadic work absences. 

A federal court’s order in Pack v. CSX Transportation allowed an employee’s case to proceed after he was fired due to an alleged misuse of intermittent FMLA leave. Toby Pack suffered from chronic kidney stones, and his doctor said that might have to miss work approximately three times a month due to his condition. 

On one occasion, Pack asked for a personal day because his children were starting to attend a new school. When this request, was denied, Pack switched and said he would be using FMLA days that had been granted on account of his kidney stones. 

Upon review, the court did not grant summary judgment to Pack’s employer, holding that a reasonable juror could find that the termination was unlawful retaliation for Pack’s FMLA leave rather than a reaction to the alleged misuse of his days to assist his children. The decision underscores how fact-intensive and legally fraught disputes over intermittent FMLA leave can be.

Employers in these cases might point to suspicious patterns or contemporaneous evidence of inconsistent activity, while the employee cites protected medical needs, the incidence of occasional flare-ups and FMLA’s prohibition on retaliatory action. Frequently, courts will allow discovery to help identify the truth among the parties’ competing claims. 

Disputes related to intermittent FMLA might be more difficult to resolve than cases involving single long-term absences. Both employers and employees should approach intermittent leave with careful documentation and a clear understanding of statutory rights and obligations. If you face an FMLA dispute, contact experienced employment counsel for a confidential assessment.

Kardell Law Group handles a full range of FMLA matters and other employment law concerns. Please call or contact us online for an appointment to discuss your legal options.