Unusual behavior can trigger employer’s FMLA obligations

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As most employers know, the Family and Medical Leave Act (“FMLA”) obligates covered employers to give leave to qualifying employees with serious health conditions. And, as the Seventh Circuit put it in Aubuchon v. Knauf Fiberglass, GMBH, the “quid pro quo” for this obligation is the employee’s burden to give notice of the need for leave.

To meet this burden, an employee is generally expected to say more than, “I am ill.” But, in some circumstances, an employee’s bizarre behavior may be enough to trigger an employer’s obligations under the FMLA — even without any direct notice by the employee.
This was the case in Beverly Stevenson v. Hyre Electric Co., just decided by the Seventh Circuit.

Stevenson was a “model employee” with no history of misconduct or health problems at Hyre until Feb. 9, 2004. On that day, a stray dog – described by Hyre’s witnesses as a “puppy” – climbed through the window of the warehouse where Stevenson worked and approached her.
Stevenson’s response was extreme and explosive. She became extremely agitated, yelling and cursing and spraying room deodorizer around her office. She left the office early with a headache, and stayed home for several days. When she returned to work, she charged into the office of Hyre’s president, yelling and swearing about the dog incident.

It took over eight minutes to calm her down. After that encounter, Stevenson again left the office and went home for several days. During this time she was calling in “sick,” but did not elaborate further. The next time Stevenson tried to come back to work, she stayed only a few hours before leaving and calling the police because her belongings had been moved to another desk. At this point, Hyre decided to change the locks to prevent Stevenson from returning unannounced.

At this point, Stevenson had used up all her sick and vacation days, and had not requested any FMLA leave. Hyre sent Stevenson a letter informing her that her absences would be considered unexcused without a doctor’s certification that she qualified for FMLA leave.

Stevenson’s physician provided several work release documents to Hyre, but did not provide proper FMLA certification.

Hyre then fired her, and Stevenson sued. The district court awarded Hyre summary judgment, finding as a matter of law that Hyre was unaware Stevenson was suffering from a serious health condition. A divided Seventh Circuit panel reversed.

Relying on its prior decision in Byrne v. Avon Products, the court explained that “clear abnormalities in the employee’s behavior may constitute constructive notice of a serious health condition.” The court then held:

“Lengthy encounters of yelling and swearing at one’s superiors so severe that a company locks out an employee with a previously unblemished record …, coupled with that employee’s calling the police because her belongings have been moved …, are undeniably unusual and could be viewed by a trier of fact as unusual enough to give Hyre notice of a serious mental health condition.”

Certainly, it is hard to argue that Stevenson’s sudden, erratic behavior would not suggest to an observer that something was wrong. Still, as the dissent points out, Stevenson’s behavior seems nowhere near as severe as the employee’s behavior in Byrnes (Byrnes went from a model employee to sleeping on the job, to then not speaking beyond “mumbling several odd phrases,” barricading himself in his room, hallucinating, attempting suicide, and trying to “flush his head down a toilet”). Yet the Court found that Stevenson’s behavior could be enough to put an employer with no specialized medical knowledge on notice that she suffered from a serious health condition. And note that it was not enough that Hyre gave Stevenson an opportunity to provide certification for FMLA leave; the Court suggests that Hyre may have had sufficient notice even before receiving any certification.

How should employers respond to cases like Stevenson and Byrnes? Well, one, employers may need to develop more knowledge and sensitivity with regard to mental health issues.

Mental health consultants, such as Psychology for Business in Brookfield, can assist employers in understanding with what they are dealing.

Two, employers may not always want to rush to terminate employees for absenteeism when there are big unanswered questions about the reasons for the absences.

Three, if you think there are indicators of a serious health condition, a reviewing court might think so too.

Fourth, remember that there are distinctions between illness and behavior. Hyre terminated Stevenson for unexcused absences. The case may have played out differently if Stevenson had been terminated for her inappropriate outburst in the company president’s office.

Finally … take steps to keep stray puppies from climbing into your workspace.