Often an employee does not explicitly request a leave of absence under the Family and Medical Leave Act (“FMLA”), thereby creating a thorny issue for the employer of what type and amount of information constitutes sufficient notice of the need for leave. On the one hand, an employee who says nothing more than “I’m sick” generally does not provide adequate notice. On the other hand, an employee’s submission of detailed medical information from his physician establishing a serious health condition almost always invokes the FMLA. There is, however, a lot of gray area between these two extremes. The Seventh Circuit has not shied away from analyzing these tricky areas, ruling in favor of the employee in two situations. In Byrne v. Avon Prods., Inc., 328 F.3d 379 (7th Cir. 2003), the Seventh Circuit held that an employee’s observable behavioral changes and a deterioration in job performance may provide sufficient notice of the need for FMLA leave. More recently, in Burnett v. LFW Inc., 472 F.3d 471 (7th Cir. 2006), the Seventh Circuit concluded that the employee had provided sufficient notice of the need for FMLA leave by certain comments and conduct regarding his health over a period of time.

Ground Rules for Notice

The U.S. Department of Labor’s regulations provide that an employee need not specifically assert rights under the FMLA or even mention the statute by name to trigger the FMLA. Rather, notice is sufficient if the employee states that the leave is needed for a potentially qualifying reason, such as an expected birth or adoption. It is then up to the employer to inquire further to determine if the leave would be for a FMLA-qualifying reason. Below is a description of the parts of the Byrne and Burnett cases that discuss the notice regulation.

The Byrne Decision

In Byrne, the employer fired the plaintiff for sleeping on the job and failing to attend a meeting with management regarding his job performance. Prior to taking off time from work to be treated for depression and a sleep disorder, the plaintiff had not expressly stated that he needed to take time off from work. Shortly thereafter, he was terminated. He then filed a lawsuit under the FMLA and ADA, and the district court granted summary judgment to the employer. The Seventh Circuit reversed, finding that an employee’s uncharacteristic conduct at work—beginning to sleep on the job after an excellent four-year work history—perhaps provided adequate notice of a medical condition. The court also stated that an employee may be excused from giving notice where his medical condition prevents him from communicating the nature of his illness and resulting need for medical leave.

The Burnett Decision

The plaintiff suffered from undiagnosed prostate cancer and was terminated after he refused to meet with his supervisor, saying that he was sick and was going home. The employer argued that it had no knowledge of the plaintiff’s medical condition, and that the plaintiff’s statement of being sick was insufficient notice. The district court granted summary judgment in favor of the employer, finding that the employee had failed to provide adequate notice. The Seventh Circuit reversed, reviewing the totality of the circumstances in determining whether the plaintiff had provided notice. The court noted that over a period of four months, the plaintiff had communicated that he was suffering from a “weak bladder,” which was severe enough to preclude a potential transfer of assignment; he was on a trajectory of increased medical visits and testing, including a blood test showing an elevated prostrate cancer screening blood test; he had recently had a prostrate biopsy and requested help with his work duties as a result; he repeatedly stated that he “felt sick” and intimated that his condition may be similar to his brother-in-law’s latent prostate cancer; and his concerns were significant enough for him to suggest that he might commit suicide if he ended up bedridden as a result of prostrate cancer. The court further concluded that it is not an unreasonable burden for an employer to consider information that it has about an employee’s disclosed medical history in assessing the seriousness of the employee’s assertion of sickness.

Avoid Getting Burned

The Seventh Circuit’s decision in Byrne seemed to switch the burden of providing notice in certain circumstances. Rather than the employee having to first provide notice of the need for FMLA-protected leave, the employer may need to designate an absence as FMLA-protected where the absence is accompanied by an employee’s significant behavioral change, a deterioration in performance, and/or a history of comments regarding his potentially serious health condition. Further, where an employee cannot communicate the need for leave due to his illness, the employer may have to treat absences as FMLA-protected.

Both decisions are warnings to employers to carefully evaluate an employee’s reason for absence, even if the employee has stated only that he is sick or even if the employee has not stated a reason at all. Human Resources and the employee’s manager should consider whether there are any circumstances or comments that could indicate that the employee’s absence is due to a serious health condition. Where an employer is unsure if the absence is FMLA-protected, the employer should consider provisionally designating the time off as FMLA leave until further information can be obtained. As always, consult with your Labor and Employment attorney if you have questions.