Dive Brief:
- CSX Transportation allegedly inflates the amount of time employees use for leave under the Family and Medical Leave Act and baselessly fires them for purportedly abusing the FMLA if they take leave on holidays and weekends, a group of former workers claimed in a proposed class-action lawsuit filed May 7 in Florida.
- Per the complaint in Click, et. al. v. CSX Transportation, Inc., the seven named plaintiffs said they took intermittent FMLA leave for serious health conditions, but that CSX allegedly assessed them more leave than they took by calculating their leave in increments of a day rather than in the more accurate increments of an hour.
- CSX also allegedly discriminated against employees through a policy that allowed workers to expunge negative points for absences if they had uninterrupted attendance for a specified time, but not if they missed work during this time for FMLA leave, according to the complaint. The plaintiffs additionally alleged that CSX fired or otherwise punished them for taking legitimate FMLA leave on holidays or weekends or due to negative point accrual — and engaged in a “concerted campaign to purge itself” of workers who relied on FMLA leave during weekends and holidays, resulting in the suspension of over 140 others.
Dive Insight:
CSX did not respond to a request for a comment prior to press time.
Except for military caregiver leave, which is 26 weeks, the FMLA allows eligible employees to take up to 12 workweeks of leave in a 12-month period for any qualifying FMLA leave reason, according to a U.S. Department of Labor guidance.
This includes an employee’s right to take FMLA leave all at once, or when medically necessary, intermittently in separate blocks of time or by reducing the time the employee works each day or week, the guidance states.
In DOL’s example, an employee with a serious health condition may take a couple hours of FMLA leave during the week for a doctor’s appointment or to attend therapy to treat their condition. Intermittent leave is also available for military family leave reasons and for bonding with a newborn or newly placed child if the employee and employer agree, according to the guidance.
Importantly, only the amount of FMLA leave an employee actually takes from work can be counted against their FMLA entitlement, and employees may take FMLA leave in the smallest unit of time made available by their employer for other types of leave, as long as that smallest unit of time is not greater than an hour, a DOL fact sheet emphasizes.
In the CSX case, the plaintiffs claimed that because the company accounted for FMLA leave by the day instead of by the hour, an employee who took FMLA leave from 10 p.m. to 2 a.m., for example, would be charged two days’ leave instead of for four hours.
Managing intermittent leave may be employers’ single biggest problem under the FMLA, an attorney previously told HR Dive.
This is because intermittent leave is typically taken by employees with chronic conditions, which tend to be episodic and unplanned, making it difficult for employers to determine on a day-to-day basis whether an employee is actually suffering from a condition, the attorney said.
Employers face tough calls, the attorney added, because sporadic, unforeseen absences covered by the FMLA can cause staffing problems.
That said, the DOL takes a broad view of the statute – even where an employee’s right to take intermittent FMLA leave creates difficult coverage issues.
A February 2023 opinion letter from the agency’s Wage and Hour Division explains: Under the FMLA, an employee who normally works more than 8 hours a day due to their employer’s round-the-clock operational needs may still be entitled to indefinitely limit their workday to 8 hours because of a chronic serious health condition, according to the letter.
If the employee is required to work longer than 8 hours, they can use FMLA leave for working time in excess of 8 hours, and those hours would be counted against their FMLA entitlement, the letter noted. If an employee never exhausts their FMLA entitlement, they may work the reduced schedule indefinitely.
“Honoring the FMLA requires businesses to bear the costs of retaining a greater number of employees to cover all shifts,” and that can be costly for businesses like CSX that operate 24/7, the lawsuit acknowledged.
But CSX allegedly reduces these costs by “limiting its employees’ lawful use of FMLA leave, and sending a clear message to the remaining employees: Take FMLA leave at your own peril,” the complaint said.
