11/2/07 3:01 PM
7th Circuit: Unusual Behavior Alone Can Constitute FMLA Notice
By Michael E. Wilbur
Even though an employee failed to give verbal or written notice that she needed leave for a serious health condition, the
7th U.S. Circuit Court of Appeals
held that a trier of fact could find that the employee’s behavior was so unusual that it gave the employer constructive notice of her need for leave under the Family and Medical Leave Act (FMLA).
During her employment at Hyre Electric Co., Beverly Stevenson had no documented history of misconduct or health problems. However, when a stray dog climbed through the window of the warehouse where Stevenson worked, she experienced physical symptoms, including a headache, a rush of blood to her head and a tightening of her neck and back. After encountering the dog, Stevenson became very agitated, started spraying room deodorizer around the office area, and began yelling and cursing about animals in the workplace.
Two hours after her encounter with the dog, Stevenson told a manager that she was ill and needed to go home. The next day, Stevenson left a voice mail for her supervisor saying that she “wasn’t feeling well” and wouldn’t be in. The day after that, Stevenson went to the workplace to meet with the company president. She burst into the president’s office, yelling and saying that it was “wrong” for her to be subjected “to this kind of thing in the office.” She cursed about “dogs running by her desk and threatening her” and pressed management “to do something about this.”
After her confrontation with the company president, Stevenson left, telling her supervisor that she “could not work.” She then called in sick the next three workdays.
More than a week after the stray dog incident, Stevenson came back to work, but she only stayed a few hours. While she was there, she was agitated, completed little work and called the police because she believed she was being harassed. When she left, she told her supervisor that she was not feeling well and she also left behind a hospital’s report of her visit to an emergency room after she had the earlier confrontation with the company president. The company then changed the locks on the doors of its facility and sent Stevenson a letter telling her that she had exhausted her accrued vacation and sick leave. In that letter, Hyre Electric also told Stevenson that if she wanted to request leave under the FMLA, she would have to obtain a medical certification and submit that to the company by a specified deadline. When Stevenson failed to provide the requested certification by the deadline, the company terminated her.
The district court granted
for Hyre Electric on Stevenson’s FMLA claim, finding that it was undisputed that Stevenson failed to give the company notice that she had a serious health condition. However, the 7th Circuit reversed.
The 7th Circuit agreed with the district court that Stevenson had an obligation to inform her employer that she needed FMLA leave, and the 7th Circuit also agreed with the district court that Stevenson had not given Hyre Electric timely verbal or written notice. The court explained that typically, an employee must inform her employer of the need for FMLA leave 30 days in advance. When the need for FMLA leave is not known in advance, the employee must give notice as soon as practicable, ordinarily within one or two working days of learning of the need for leave. Even though Stevenson told the company that she was missing work because of an illness, she had not, within the period required by FMLA, notified Hyre Electric verbally or in writing that her illness might be a serious health condition that would trigger the company’s FMLA responsibilities.
But the court further reasoned that verbal or written notice by the employee is not always necessary because “clear abnormalities in the employee’s behavior” may provide the company with constructive notice of a serious health condition. In Stevenson’s case, the court held, summary judgment was inappropriate because a trier of fact could conclude that her behavior was so unusual that the company effectively had been put on notice that she might be suffering from a serious health condition.
Stevenson v. Hyre Electric Co
th Cir., No
. 06-3501 (Oct. 16, 2007).
Professional Pointer: This case illustrates that the FMLA’s notice requirement cannot be used as a basis for an employer to insist on a particular form of notice from an employee, that employees need not use any magic words to invoke FMLA’s protections, and that, in some cases, an employee may not be required to say anything at all to provide the employer with notice of a possible serious health condition. The purpose of FMLA’s notice requirement is to ensure that employers are aware that an employee’s absence might implicate the employer’s obligations under the FMLA. Therefore, before taking adverse action against absent employees, employers must carefully consider whether they are aware of any facts from any source that might provide notice of possible FMLA protection.
Michael E. Wilbur is an attorney in the firm of
Cook Roos Wilbur Thompson LLP
firm in San Francisco.
Workplace Law Focus Area
Editor’s Note: This article should not be construed as legal advice.