Every HR pro knows this little workplace miracle.
Just as your office or plant is winding down for Memorial Day—or some other prime-time long weekend—boom: your employee’s chronic condition suddenly flares up like a Roman candle.
What timing.
A total and complete coincidence, right?
Enter Andrew, who worked as a conductor for CSX Railroad and a chap whose story I highlighted at my recent FMLA & ADA Master Class [see recording details below].
Andrew’s FMLA leave (coincidentally) clustered around holidays, and CSX relied in part on that holiday timing and broader aggregate statistics to support its suspicion that something was amiss.
Like so many employers, especially those in the transportation industry, CSX pulls its hair out over the throngs of employees who call out for FMLA around the holidays. So, CSX investigated Andrew and a number of other employees whose FMLA leave clustered around these same holidays to determine if they were playing fast and loose with FMLA time.
But here’s where things went sideways.
In its investigation, CSX chose to exclude from scrutiny those employees with other serious medical conditions — including cancer, terminal illness, and late-term pregnancy. So while Andrew apparently drew the side-eye because his absences hugged the holiday calendar a little too tightly, other employees with different conditions enjoyed a gentler review.
Uh oh.
The Court’s Curious Viewpoint: Holiday Timing and Statistics Alone Don’t Prove Misuse
In rooting out fraudulent FMLA leave, CSX apparently relied in part on the timing of Andrew’s absences — specifically, the fact that they clustered around holidays — and on the larger statistical picture that, in CSX’s view, suggested misuse.
Fair enough, right?
Not for this court.
The court found that holiday timing and aggregate statistics, standing on their own, did not inherently establish FMLA misuse. In other words, just because an employee’s absences seem to line up a little too neatly with desirable days off does not automatically mean the employee is gaming the system.
Your Honor, I respectfully disagree [and I do so rather vehemently].
Because in the real world, employers do not start asking questions about absence patterns because they enjoy administrative hobbies. They ask because patterns matter. And absences that repeatedly and conveniently attach themselves to holidays are not exactly random acts of medical misfortune.
Still, the court was unwilling to let CSX rest on timing and statistics alone.
And Then Came the Comparator Problem
If the holiday-timing issue bruised CSX, the comparator evidence bloodied it.
The court pointed to evidence that CSX may have provided “systematically better treatment” to employees with other serious medical conditions, including cancer, terminal illness, and late-term pregnancy.
That kind of evidence is kryptonite in an FMLA case.
Because once a court sees that one set of medical conditions was treated with greater grace, patience, or investigative restraint than another, the employer’s defense starts to fall apart.
To be clear, the issue is not that cancer, terminal illness, and late-term pregnancy are not serious. Of course they are. And of course employers often react to those conditions with a greater degree of empathy. But the law does not permit employers to divide serious health conditions into neat little buckets of:
- conditions we respect
- conditions we doubt
- conditions we investigate like a crime scene
That’s a problem.
An employer does not get to be tender-hearted for one diagnosis and hard-boiled for another if the result is inconsistent treatment in the administration of FMLA leave.
And that, it seems, is exactly what troubled the court here. Check out the court’s decision here: Brown v. CSX (pdf)
2026 FMLA & ADA Master Class
Did you miss out on Jeff’s March 2026 FMLA & ADA Master Class? No worries! Access the recording at the link below. Think case studies, real-world examples, 2025 – 2026 case law, and yes – plenty of corny humor. By the end, you’ll master the critical components of the FMLA and ADA and become more comfortable with managing an employee with a medical condition. Access the recordings to the first four days of this course and get access to Day Five being held on September 16, 2026: FMLA and ADA Master Class 2026 | Littler
Insights for Employers
There are some lessons here when we’re trying to fight FMLA misuse:
1. Holiday timing absolutely can show a pattern of misuse
Simply put, the court’s suggestion that holiday timing does not inherently show a pattern of misuse defies common sense and the reality of the workplace.
No one is saying that every absence around a holiday is fraudulent. Of course not.
But if absences repeatedly and almost artistically fall around long weekends, denied vacation days, or holidays, employers are not crazy to view that pattern as suspicious. They are paying attention. As they should.
Because patterns matter.
They may not prove FMLA misuse by themselves, but they absolutely can justify closer scrutiny, follow-up questions, recertification, and a real investigation.
Nine out of 10 other courts would have sided with CSX in its right to investigate patterns of suspected FMLA misuse of the kind at issue here. This court simply got this part wrong. So, I say – take the court’s view here at least on this initial issue with a grain of salt.
2. But once you investigate, you must investigate fairly
Here’s the caution flag: employers cannot investigate one kind of condition aggressively while giving another a free pass.
This is where the employer got into trouble.
If you are going to question intermittent leave taken for migraines, anxiety, IBS, chronic back pain, or similar conditions, you need to apply the same basic investigative standards you would apply to other serious medical conditions. Maybe the facts will justify different outcomes. Fine. But the process itself must be even-handed.
Courts notice that.
And juries will, too.