Many employers ignore the multitiered notice requirements of the Family Medical Leave Act (“FMLA”) (an issue that I will discuss in a future post). Nonetheless, most employers recognize that they need to be careful when terminating any employee for excessive absences or tardies if that employee ever suggested that he may be suffering, or have suffered from, a serious medical condition. It doesn’t matter if the company has tracked the employee’s absences as FMLA absences; an employer still risks being sued for FMLA interference or retaliation if the employee had provided some notice of a serious medical condition in the past.

But what happens when an employee has never said anything about her health problems or disability? Could an employer ever have “constructive” notice of a serious medical condition? In Guzman v. Brown County, No. 16-3599 (March 7, 2018), the Seventh Circuit considered an employee’s claim that her employer had constructive notice of her serious medical condition (in this case, sleep apnea) because her six late arrivals over an eighteen-month period, for which she was terminated, were “uncharacteristic with her performance history.”

The Court disagreed and made it clear that for an employer to be on constructive notice of a serious medical condition, there must be “clear abnormalities” or a “stark and abrupt change” in the employee’s behavior. The Court found that six events over eighteen months were not stark and abrupt enough.

While this is a sensible decision, anyone who has been in the human resources business for any length of time knows that it is not unheard of to have employees who have experienced a “stark and abrupt change” in their behavior — including substance abuse problems, serious psychological issues or even early onset dementia. For example, in Guzman, the Seventh Circuit referenced a prior ruling in which an employee started suddenly shouting at fellow employees over minor occurrences in the workplace. This example demonstrates that there remain many situations where whether a “stark and abrupt change” has occurred is unclear but a court may deem an employer to have constructive notice of a serious medical condition or disability. In those cases, employment decisions will need to be made with special care.