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FMLA’s Intermittent Leave Can Be Tricky For Employers

An employer’s rescission of intermittent leave for financial reasons led to a jury verdict against it.
Tracy Wink was mother to an autistic son. Her son was expelled from his daycare causing Ms. Wink to request that she be able to work from home two days a week to care for him. Her mother could care for him the other three days a week. Her employer, Miller Compressing Company, agreed to allow her to work from home and it also agreed that she could take time off as necessary during those two days to assist her son. That as needed time would be counted as intermittent FMLA leave. However, about five months into the arrangement, the company began to experience financial difficulties. As a result, it ended all work-from-home arrangements, including Ms. Wink’s. Ms. Wink was told on a Friday that she had to return to work full-time the following Monday morning or lose her job. Ms. Wink explained that it was not enough time for her to find somewhere else to place her son. The human resources officer erroneously told Ms. Wink that FMLA intermittent leave covered only medical appointments and therapy. When Ms. Wink could not find alternate care by Monday, she was told that she was a “voluntary quit.”
A jury found in favor of Ms. Wink on her claim that she had been retaliated against for asserting her right to FMLA leave. Miller appealed but the Seventh Circuit Court of Appeals upheld the verdict for Ms. Wink. The court found that Miller had allowed Ms. Wink to work from home for a good period of time and had no “compelling” reason to fire her. It was a reasonable inference for the jury to conclude that Miller was angry with Ms. Wink for wanting to stay home two days a week and use intermittent leave.