FMLA May Be Triggered by Employee’s Sudden “Bizarre” Behavior

WDC Journal Edition: Summer/Fall 2008
By: Robin M. Sheridan

Executive Summary

Ordinarily, an employer’s responsibility to provide a leave of absence under the Family and Medical Leave Act (“FMLA”) arises when an employee gives notice to the employer of a need for leave for a serious health condition. Although an employee need not specifically say “FMLA” in requesting leave, in most circumstances, the need for FMLA leave is implicit in the request. In 2003, the Seventh Circuit Court of Appeals identified two exceptions to these notice rules. According to the Court, in circumstances where a model employee displays clear, abnormal workplace behavior or is unable to communicate a need for leave, the employer will be effectively put on notice that the employee has a serious health condition that requires FMLA leave. These exceptions were viewed narrowly by the Court until very recently. Now employers, more than ever before, may be held responsible for FMLA compliance even if the employee makes no request at all. This development places a heavy burden on managers and supervisors to be constantly aware that sudden abnormal or bizarre workplace behavior may trigger FMLA responsibilities and not simply a cause for discipline. Stevenson v. Hyre Electric Co.[1]

Detailed Analysis

On October 16, 2007, the Seventh Circuit expanded its previously stated concept of constructive notice of an employee’s need for FMLA leave. In Stevenson v. Hyre Electric Co., the Court held that an employee’s workplace behavior can be so suddenly bizarre and unusual that a jury could conclude that the employer should have known that the employee was suffering from a serious health condition and should have granted leave under the FMLA rather than firing the employee for the bizarre behavior.

Stevenson’s Bizarre Behavior

In Stevenson, the Court was presented with a warehouse employee, Beverly Stevenson, who had no documented history of misconduct or health problems. One day, however, a stray dog climbed through a window and wandered into Ms. Stevenson’s work area. She immediately became agitated, suffered physical symptoms, including a headache, and a tightening of her back and neck. She began spraying her work area with Glade air freshener, yelled and screamed profanities at her superiors, and left work saying she was “ill and needed to go home.” The next day she called in “not feeling well.” The day after that she charged into the company president’s office yelling that it was wrong for the company to allow “f***ing” dogs to run by her desk and that management needs to do something. She then said that she “could not work” and then left the premises. The next several work days she called in “sick” but gave no details.

Eventually, Stevenson returned and worked for a few hours but then called the police because she thought she was somehow being harassed after the company moved her belongings to a different area away from the possibility of a stray dog. Claiming she was “not feeling well,” she left work again. This time the company sent her FMLA paperwork and requested that she provide a medical certification for her absences or they would be considered unexcused. Although she had seen a doctor who had diagnosed “anxiety and stress,” she never provided a medical certification that her condition was a serious health condition under the FMLA. Ultimately, the company terminated her and she then filed suit. The company won a summary judgment in its favor but on appeal the Seventh Circuit held that Ms. Stevenson must have her day in court.

The Court Holds That Juries Should Decide Questions of Constructive Notice

Under the FMLA, an employee is required to give at least 30 days’ advance notice of the need for leave if it is foreseeable or, if the leave is unforeseeable, as soon as practicable. The employee’s duty is merely to put the employer on notice of the probable basis for FMLA leave by giving enough information to establish probable cause that the employee is entitled to FMLA leave. Once that is done, the employer has a duty to request such additional information from the employee’s doctor or some other reputable source as may be needed to confirm the employee’s entitlement.

In 2003, the Seventh Circuit held that an employer has constructive notice of an employee’s need for leave in situations where the employee is unable to communicate the nature of the illness to the employer or where there are clear abnormalities in the employee’s behavior. That holding grew out of a situation where a highly-regarded plant security guard started sleeping on the job and failed to show up for work. When the employer called to find out why, the employee could only mumble and a family member reported that he was “very sick,” had been hospitalized and had attempted suicide.

In the Stevenson case, the employee’s behavior was not so obviously tied to a serious health condition. It was, however, very unusual. Indeed, the Court recognized that while Ms. Stevenson’s unusual behavior was unusual enough that a jury could decide that her employer had notice of a serious mental health condition, her poor behavior could just as easily been caused by a bad temper. According to the Court, those types of determinations are best left to the jury.

A Word of Caution to Employers

The concept of constructive notice is a troublesome one for employers because it places frontline managers and supervisors in the difficult position of attempting to diagnose the cause of every instance of unusual workplace behavior. Certainly when behavior can be linked to some obvious physical or mental condition, the task may not be that difficult. However, the Stevenson case seems to take the concept of constructive notice to another level. Now, bizarre behavior that involves yelling, screaming and cussing at a supervisor or even the company president followed by work absences and claims of illness may be enough to trigger the FMLA -- or at least raise a question concerning FMLA obligations. Unfortunately for employers, the final answer may not be known until a jury decides if the frontline supervisor made the right call in an ambiguous situation of bizarre workplace behavior. A jury’s view of the workplace behavior can never be predicted and the risk to employers can be high in a close case.

Employers are encouraged to update manager/supervisor training and utilize this case to remind them of the importance of working closely with Human Resources, particularly when they are dealing with odd behavior issues. Moreover, in light of Stevenson, managers and supervisors should be cautioned -- before taking any final disciplinary action -- to consider inquiring if an employee desires FMLA leave. Managers and supervisors should be further instructed to tread lightly when making this inquiry. They should not make or state assumptions about an employee’s physical or mental health. Such an inquiry may open the door to issues under the Americans with Disabilities Act. Ultimately, it is always preferable that the request for leave come from the employee. Although there can be no guarantees, this cautious approach will best ensure that the employer’s FMLA obligations are fully satisfied with the least amount of exposure to potential litigation.

[1]Reference: Stevenson v. Hyre Electric Co., 505 F.3d 720 (7th Cir. 2007).