In our updates, we have reported on cases regarding whether an employee provided sufficient notice of the need to take FMLA leave. One case, Byrne v. Avon Products, Inc., No. 02-2629, 7th Cir. 2003 (on which we reported in our May 26, 2003 update) involved a model employee who began to sleep through much of his shift and show symptoms of depression. In that case, the court found that the employee could try to show that the failure of the employee to give explicit notice of the need for FMLA leave could be justified based either on the exception that notice is not required in "extraordinary circumstances" or that the employee's abrupt change of behavior was sufficient notice to the employer. Now, in a case involving a strange set of circumstances, the 7th Circuit has issued another decision regarding an employer's constructive notice of an employee's serious health condition. (Stevenson vs. Hyre Electric Co., October 16, 2007).
Prior to the fateful day of February 9, 2004, Ms. Stevenson was a satisfactory employee of Hyre Electric with no history of misconduct or health problems. But at approximately 10 a.m., Ms. Stevenson's workspace was invaded by a stray dog that apparently came in through an open window. (There was some dispute as to whether it was a puppy or full-grown dog.) Ms. Stevenson had a violent reaction, yelling, cursing, and becoming agitated and belligerent. Her behavior became progressively worse. Within the next few weeks, she got into a shouting incident with the company president, missed several days of work, and was treated for anxiety. Ms. Stevenson missed work and left messages that she was “feeling sick” or that she was ill. She also met with the union representative and mentioned that she was “off sick” without providing details. After she exhausted her earned time off, the company notified Ms. Stevenson that any additional time off was governed by the FMLA and she had to provide a medical certification by February 24. She submitted various notes from her doctor, but did not return to work. She was terminated effective February 25.
The issue was whether Ms. Stevenson provided her employer with the notice required by the FMLA. The Court found that she did not provide direct notice of her need for FMLA leave. However, the Court, citing Byrne, concluded that, "Taking the facts in the light most favorable to Stevenson, we conclude that a trier of fact could find that her behavior was so bizarre that it amounted to constructive notice of the need for leave. Hyre has not disputed Stevenson’s claim that she was a “model employee” prior to February 9, 2004 . . ." One judge dissented, finding that, unlike the employee in Byrne (who, suffering from depression, was unable to communicate), Ms. Stevenson was able to communicate her condition and should not be excused from providing the required notice under the FMLA.