Sometimes an employee’s behavior can be enough to trigger an employer’s obligations under the Family and Medical Leave Act (FMLA). That was the case in Stevenson v. Hyre Electric Co.

BIZARRE AND ERRATIC BEHAVIOR

When a stray dog entered her workspace, an employee immediately experienced extreme physical symptoms, including headache, blood rushing to her head, and tightening of her neck and back. According to her supervisor, the employee began yelling, cursing and screaming that “animals shouldn’t be in the workplace.” Two hours later, she told the accounting manager that she needed to go home because she was ill.

When the employee returned to work two days later, she met with the company president. He said she aggressively charged into his office and profanely yelled that it was wrong for her to be subjected to dogs “running by her desk and threatening her, and that management needed to do something about it.”

ANXIETY AND STRESS

Later that day, the employee went to the emergency room, complaining of three days of headaches, insomnia, anxiety and loss of appetite following an “emotionally stressful incident at work” and was diagnosed with “anxiety and stress.”

When the employee returned to work after six days, she was upset to find that her supervisor had moved the contents of her desk to another room to accommodate her fear of stray animals. She stayed at work for a few hours but was still agitated. She called the police because she believed she was being harassed. She then told the supervisor that she wasn’t feeling well and, after putting the hospital’s report of her emergency room visit on the accounting manager’s desk, left work. After she left, the company president had the locks changed on the company’s doors.

The company fired the employee, and she sued, alleging that the firing violated her rights under the FMLA. The trial court disagreed and ruled for the company without a trial.

KEY INQUIRY

The Seventh Circuit found that the key inquiry was whether the employee had given the company notice of her need for FMLA leave. If she hadn’t, then the company had no duty to grant leave. The FMLA places the notice burden on the employee as “the quid pro quo for the employer’s partial surrender of control over his workforce.”

An employee has to give the employer only enough information to establish probable cause to believe that he or she is entitled to FMLA leave. Then the burden shifts to the employer “to request such additional information from the employee’s doctor or some other reputable source as may be necessary to confirm the employee’s entitlement.”

DIRECT NOTICE

But direct notice from the employee to the employer isn’t always necessary. An employee’s case may proceed if he or she has constructively notified the employer of the need for FMLA leave. The Seventh Circuit noted that either an employee’s inability to communicate her illness to her employer or clear abnormalities in the employee’s behavior may constitute constructive notice of a serious health condition.

Under the FMLA, “if the employer knows of the employee’s need for leave, the employee need not mention the statute or demand its benefits.”

The Seventh Circuit held that a trier of fact could conclude that the employee’s behavior on three occasions was so unusual as to constitute constructive notice of her need for FMLA leave. Lengthy encounters of yelling and swearing at one’s superiors so severe that a company locks out — for safety concerns — an employee with a previously unblemished record, coupled with her calling the police because her belongings have been moved to another desk, are undeniably unusual.

And a fact trier could view this behavior as unusual enough to constitute notice to an employer of a serious mental health condition. So the Seventh Circuit reversed the trial court’s ruling and sent the case back for trial.

EMPLOYERS, BEWARE

This case demonstrates the importance of reviewing with counsel in advance the merits of a decision to fire an employee. The laws governing employment are numerous and nuanced. Savvy employers discuss employment termination decisions with counsel to determine any possible exposure.

SIDEBAR: CONGRESS EXPANDS FMLA

In January 2008, President Bush signed into law the first expansion of the Family and Medical Leave Act (FMLA) since it was enacted in 1993.

The National Defense Authorization Act amended the FMLA to require employers to provide 12 weeks of FMLA leave during a 12-month period to the spouses, children or parents of members of the armed forces called to active duty.

Additionally, the FMLA expansion allows employees 26 weeks of leave to care for a spouse, child or parent who sustained injuries during military service that resulted in their being unable to perform their duties.

But employees are entitled to no more than 26 weeks of total FMLA leave in any 12-month period, even if they otherwise would be entitled to leave for another FMLA qualifying event, such as:

• The birth or adoption of a child,
• A parent’s, child’s or spouse’s serious health condition,
• The employee’s own serious health condition, or
• The employee’s parent, child or spouse being called to active duty in the armed forces.

For example, an employee can’t take 26 weeks of leave to care for a spouse injured in military service and then less than six months later take additional FMLA leave to care for a parent with a serious health condition.

All FMLA leave may be taken intermittently or on a leave schedule that reduces an employee’s usual number of working hours per workweek or hours per workday