Today we’re joined by Sofia Khaira, a specialist in diversity, equity, and inclusion who serves as our go-to HR expert on enhancing talent management practices. We’re going to dive into the notoriously complex world of the Family and Medical Leave Act, particularly the challenges surrounding intermittent leave. Drawing insights from a recent federal court case that has put employer actions under a microscope, we’ll explore how companies should navigate tricky situations involving suspected FMLA misuse. Our discussion will cover the critical steps for a fair investigation, the distinction between FMLA interference and retaliation, and the proactive measures employers can take to ensure compliance and avoid costly litigation.
If an employee says they’ll have to “use FMLA” after being denied a personal day, what is the right immediate response? How can HR investigate this statement thoroughly and fairly without creating the appearance of retaliation? Please share the key steps.
The first thing to do is take a breath and avoid an immediate, overreactive response. A statement like that is certainly a red flag, but as we saw in the Pack v. CSX case, it’s not a silver bullet for termination. The key is to address your suspicions in a way that minimizes retaliation risk. You must not jump to conclusions. Instead, you should initiate a fair and thorough investigation. This means looking at all the facts, including the nature of the employee’s approved leave and whether their need for leave could genuinely coexist with what they said. You have to remember that a court will scrutinize every step you take, so proceeding with caution and fairness is paramount.
An employer has a recording that seems to indicate FMLA misuse, but the employee later provides a doctor’s note validating the absence. How should a company weigh this conflicting evidence during an internal hearing, and what makes a decision “reasonably informed” in the eyes of a court?
This is the exact tightrope CSX failed to walk. Having a recording that sounds damning can create a sense of certainty, but it’s just one piece of the puzzle. A “reasonably informed” decision, the standard a court will look for, requires you to consider all available evidence. In the CSX case, the company’s FMLA manager felt the call was so “clear” that they didn’t even need to determine if the leave was actually for a protected reason. That was a critical mistake. When an employee provides a doctor’s note confirming they sought care, you absolutely must weigh it against the recording. You have to ask: Could both be true? The judge in that case noted the call didn’t conclusively establish misconduct, especially given the employee’s testimony that he had both medical and family needs. A truly informed decision is one that thoughtfully considers all conflicting pieces of evidence before acting.
What specific call-in procedures and manager training are most effective for handling intermittent FMLA? Please walk us through a best-practice scenario for when an employee calls out for a certified chronic condition, including what managers should and should not say.
Effective management of intermittent FMLA hinges on having crystal-clear processes. First, establish a formal call-in procedure that spells out exactly how an employee must report an absence, who to contact, and what information is required. For a best-practice scenario, imagine an employee with certified FMLA for chronic kidney stones calls in. The manager should listen, acknowledge the call, and stick to the script. They can ask, “Is this absence for your FMLA-certified condition?” but they should not interrogate the employee or demand specific medical details beyond what’s allowed. The manager’s role is to document the call according to the procedure and pass it to HR. Training is vital here; managers must be taught to prevent missteps, like making judgmental comments or showing frustration, which could later be used to build a retaliation claim.
In FMLA disputes, what is the practical difference between an interference claim and a retaliation claim? Could you provide an example of an employer’s actions that might lead to a retaliation charge, even if the company technically did not interfere with the employee taking leave?
This is a crucial distinction that the CSX case highlights perfectly. An FMLA interference claim alleges that an employer prevented or discouraged an employee from taking leave they were entitled to. For example, if a manager had told the employee he couldn’t use FMLA that day, that would be interference. In this case, the employee did take his four days of leave, so the court dismissed the interference claim. A retaliation claim, however, argues that the employer punished the employee for having taken the leave. CSX firing the employee after he used FMLA is a classic example. The company didn’t stop him from taking the time off, but a jury could find they terminated him because he took it, using his frustrated comment on the phone as a pretext. This demonstrates that even if you approve the leave, any negative action taken afterward can open the door to a retaliation lawsuit.
What is your forecast for FMLA litigation and employer compliance challenges?
I foresee FMLA litigation, especially surrounding intermittent leave, becoming even more prevalent and nuanced. The modern workplace’s demands for flexibility, combined with a greater awareness of employee rights, create a fertile ground for these disputes. The Pack v. CSX ruling signals that courts are willing to dig deep into an employer’s decision-making process, refusing to take seemingly “clear” evidence of misuse at face value. The biggest compliance challenge for employers will be moving from a reactive, policing mindset to a proactive, process-driven one. Companies that invest in robust manager training, create unambiguous call-in procedures, and conduct genuinely fair and holistic investigations when they suspect abuse will be the ones who stay out of the courtroom. Those who rely on gut feelings or single pieces of evidence will find themselves increasingly at risk.
