Constructive Notice of Health Condition Triggers Duty of Employer Under FMLA

In Stevenson v. Hyre Electric Co., the Seventh Circuit Court of Appeals recently held that even though an employee failed to provide direct notice of her need for leave under the Family and Medical Leave Act (FMLA), her sudden bizarre and abnormal behavior should have put the employer on notice that she may have been entitled to FMLA leave.

Typically, notice of need for FMLA leave is provided directly by the employee either orally or in writing with enough detail for the employer to recognize that a serious health condition may exist and give rise to the need for the leave. The employee’s burden is relatively light; it is satisfied if he or she provides enough information to put the employer on notice of a probable cause basis FMLA leave. The court in Hyre Electric has expanded this standard through its holding that constructive notice may suffice.

The plaintiff, Beverly Stevenson, worked as a receptionist and a clerk in the employer’s warehouse for eight years. Prior to February 9, 2004, she had no history of misconduct or health-related problems. Things changed dramatically, however, on February 9, when a stray dog climbed through the window of the warehouse where she worked and approached her. The dog did not hurt her in any way, but she said she immediately suffered a series of physical symptoms including a headache and tightening of her neck and back. Stevenson went home for the balance of that day, but did not go to a doctor’s office or a hospital and took the next day off. When she returned on February 11, she met with the company president and had an emotional outburst that ended with her screaming and cursing at him that it was wrong for her to be subjected to “f***ing animals” in the workplace. Stevenson was sent home for the day.

Later that day she filed a complaint with the Occupational Health & Safety Administration about her exposure to stray animals. She also went to the emergency room where she was examined by a doctor after complaining of three days of headaches, insomnia, anxiety and loss of appetite. An EKG test and CAT scan both came back normal. On the next three consecutive working days, Stevenson called in stating that she was ill, but provided no further details. On February 17, she did return to work, was still agitated, completed little or no work and told her supervisor that she was not feeling well and left for the day. She also called the police complaining of being harassed as someone had moved the contents of her desk to another room. After Stevenson left work early on February 17, a letter was sent to her advising her that she had exhausted all of her accrued vacation and sick leave and that she had 15 days in which to obtain medical certification from a physician that her absence was due to a serious health condition to take advantage of FMLA leave. The letter further advised that if she did not provide that information by February 24, 2004, her absences would be deemed unexcused and she would be terminated.

On February 18, Stevenson again called in sick and saw her physician who prescribed a sleep aid medication and a follow-up visit for February 20. Stevenson kept her follow-up appointment, Dr. Liszek, on February 20, at which time the doctor gave her a note excusing her absence from February 9 through February 20. The parties agreed that this note did not establish that she had been instructed not to work during that time period. The company declined to accept the note as an FMLA certification and terminated her employment effective February 25.

The Seventh Circuit concluded that the medical information which Stevenson did provide was insufficient to provide the employer with direct notice of her need for FMLA leave. The court held, however, further that her behavior on February 9, 11 and 17 was so unusual that it gave the company constructive notice of her need for FMLA leave. The court emphasized that unusual behavior alone can be enough to notify a reasonable employer that an employee is suffering from a serious health condition. In this case, Stevenson’s yelling and swearing at her superiors following her previously unblemished record coupled with her calling the police because her belongings had been moved were undeniably unusual and could be viewed by a trier of fact as unusual enough to give the company notice of a serious mental health condition.

Suspicious Medical Certifications Insufficient to Support FMLA Leave

In Novak v. MetroHealth Medical Center, the Sixth Circuit Court of Appeals held that an employee’s termination for excessive absenteeism did not violate FMLA because the medical certifications submitted in support of her FMLA request were suspicious, contradictory and unreliable.

The plaintiff, Donna Novak, worked as a financial counselor for the employer MetroHealth. The employer maintained a no-fault attendance policy that assigned points to employees based on the number of hours of unexcused absences. An employee who accumulated 112 points in a 12-month period was subject to discharge. However, approved absences such as FMLA leave were not included in the point total. Novak was terminated after she accrued 124 points between April 16, 2003 and April 16, 2004. The final absences which triggered the termination occurred in late March 2004. On March 22, she reported that her daughter was having a baby. On March 23, she arrived late without explanation. On March 25, she stated she could not work because of back pain. On March 27, she sent an email to her supervisor explaining that she needed to be off from March 29 until April 1 because her daughter was suffering from postpartum depression, her five-year-old grandson had been admitted to the hospital and both were in need of her help and expertise. She called in again on March 29 alleging that she was sick, and on March 30 and 31, claiming that her daughter and grandson were ill. Realizing that she was accumulating a significant number of points under the no-fault attendance system, Novak requested FMLA leave for her March 2004 absences. On March 30, 2004, she visited a Dr. Patil regarding her lower back injury. Prior to that time she had been treated by a Dr. Wlozek who was her physician of record with her employer. In early April 2004, Novak sent an FMLA certification form to Dr. Wlozek’s office. The form was completed and sent to the employer, but because Dr. Wlozek had not actually examined Novak since October 2003, certain key information was omitted including a description of the medical condition and its likely duration. After learning that the certification was incomplete, Novak contacted the doctor’s assistant and demanded that she complete the remainder of the form and fax it to the employer. Indeed, Novak instructed the assistant what to write in the empty spaces on the form.

MetroHealth questioned the authenticity of both certification forms and asked Novak to execute a release authorizing MetroHealth to contact the doctor. Novak complied with that request. At that time, Novak was given one week to submit additional certification forms. When Dr. Wlozek was contacted by MetroHealth, they learned that she had not seen Novak since October 2003 and lacked personal knowledge of her alleged back condition problems in 2004. Several days later, Dr. Wlozek completed a third certification form, this time including second-hand information which had been provided to her by Dr. Patil who had treated Novak for her back injury in March. After reviewing all of the relevant information, MetroHealth concluded that Novak had provided contradictory information and therefore did not qualify for FMLA leave under their absenteeism policy. Since her absences were not authorized, she was assessed points for all of the missed hours and was terminated pursuant to that policy.

The District Court found that the suspicious and contradictory nature of Novak’s certification forms was inconsistent with the contention that she was suffering from a serious health condition and the Sixth Circuit upheld that conclusion. The court noted that an employer who finds an employee’s certification to be incomplete has a duty to inform the employee of the deficiency and provide the employee with a reasonable opportunity to complete the form. MetroHealth clearly satisfied that duty in this case.

The general rule under FMLA is that the medical certification provided by the employee is presumptively valid, if it contains the required information and is signed by the health care provider. The MetroHealth Medical Center decision provides a very narrow exception to that general rule and permits the employer to overcome that presumption by showing that the certification information itself is either invalid or inauthentic. Employers are reminded, however, that where an employee’s medical certification is deemed to be incomplete, the employer has an affirmative duty to inform the employee of the deficiency and provide the employee with a reasonable opportunity to cure that deficiency.

This step must be undertaken prior to concluding that the employee’s leave request is not well-founded.