Labor and Employment Articles 

Uncharacteristic Behavior by Employee Could Constitute or Excuse Notice of Need for FMLA Leave

by Sandra Perry
The Seventh Circuit Court of Appeals, which covers Indiana, recently held that unusual behavior on the part of a model employee can serve as notice to an employer that the employee needs FMLA leave or excuse the notice requirement altogether. See Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003). The employee at issue in that case, John Byrne, was the only stationary engineer on the night shift at Avon Products. During his four years with the company, Mr. Byrne was considered an exemplary employee. All that changed in November, 1998 when supervisors observed Mr. Byrne spending several hours of his shift over a two-day period sleeping or reading. On November 17, 1998, the company decided to confront Mr. Byrnes about his unacceptable behavior, but he left work early before anyone was able to raise the issue with him. As he was leaving, Mr. Byrne told his co-worker that he was not feeling well and would be off work the rest of the week. When the company attempted to contact Mr. Byrne at home, his sister revealed that he was “very sick” but gave no further details. Eventually the Company managed to speak to Mr. Byrne who “mumbled several odd phrases” but somehow agreed to attend a meeting the following afternoon. After Mr. Byrne failed to appear for the scheduled meeting the company terminated his employment.  

Unbeknown to the company, Mr. Byrne was suffering from depression. According to a psychiatrist, Mr. Byrne began to experience hallucinations as a result of his mental condition and by November 17, 1998, he had become so mentally unstable that he tried to flush his head down the toilet and attempted to commit suicide. His family finally took him for medical treatment after he barricaded himself in his room and refused to come out. After two months of treatment, Mr. Byrne was pronounced fit to return to work, but Avon Products would not reinstate him. Mr. Byrne responded by filing suit against the company under the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”). The District Court summarily dismissed Mr. Byrne’s case after concluding that November 17 was too late for Byrne to give the company notice of his serious health condition for FMLA purposes and because neither statute excused his dereliction of duty. 

On appeal, the Seventh Circuit Court of Appeals upheld the lower court’s ruling with respect to Mr. Byrne’s ADA claim. According to the Court, the ADA protects only a “qualified individual with a disability.” Because Mr. Byrne was unable to work due to his illness, the Court determined that he was not “qualified” for purposes of the ADA. However, the appellate court reacted more favorably towards Mr. Byrne’s FMLA claim. The FMLA provides up to twelve weeks of unpaid leave to certain covered employees because of a serious health condition or other specified circumstances. Where the need for such leave is not foreseeable, an employee is required to give notice to the employer of the need for FMLA leave within one or two days of learning of the need for leave or as soon as practicable under the circumstances. See 29 C.F.R. § 825.303(a). The notification requirement may be excused entirely in extraordinary circumstances where “notice is not feasible.” Id. 

According to the Court, summary dismissal of Mr. Byrne’s claim was inappropriate. More specifically, the Court determined that a jury could reasonably determine that Mr. Byrne was entitled to FMLA leave despite his failure to alert his employer of his need for time off due to a medical condition. First, the Court opined that Mr. Byrne’s unusual behavior could itself be considered notice of his need for medical leave considering that he had been a model employee until November, 1998. Second, the Court stated that the notice requirement could reasonably be excused if evidence established that by November, 1998 Mr. Byrne was unable to regulate his sleep cycles and had become so suspicious of other people that he “was powerless to communicate his condition effectively.” Having decided that a factual issue existed with respect to notice, the appellate Court reversed the lower court and sent the case back for trial on the FMLA issue.

Prior to the Byrne opinion the onus was already on the employer, not the employee, to designate time off work as FMLA leave. This is because the FMLA regulations provide that an employee who requests leave is not obligated to identify it as FMLA-related and need only offer a reason which would qualify under the FMLA. The effect of Byrne is to require increased vigilance on the part of employers, as companies must now be attentive to any uncharacteristic behavior by an employee that may signal the potential need for FMLA leave. This recent opinion by the Seventh Circuit simply adds to the burden of covered employers, many of whom were already experiencing problems trying to navigate and effectively apply this confusing and complex federal leave law.