Family, Medical Leave Act: Constructive Notice for Leave as appeared in New York Law Journal

The U.S. Court of Appeals for the Seventh Circuit in Stevenson v. Hyre Electric Co.,1 recently found that although an employee may not have given direct notice for leave under the Family and Medical Leave Act (FMLA), she may have provided constructive notice of her need for FMLA by her unusual workplace behavior, apparently precipitated by a stray dog in the office.

This decision will probably have large implications for employers by forcing them to seriously scrutinize the circumstances surrounding an employee's absence when considering whether the FMLA, along with its attendant rights and obligations, are triggered.

Facts of the Case

Not exactly "man bites dog," but read on. On Feb. 9, 2004, a stray dog climbed through the window of the Hyre Electric Co. (Hyre) warehouse and approached Ms. Beverly Stevenson, an employee of Hyre, who prior to this day had been a satisfactory employee. Ms. Stevenson "immediately felt physical symptoms, including a headache, a rush of blood to her head and a tightening of her neck and back."2 Her supervisor, Ms. Mary Cicchetti entered the room where Ms. Stevenson worked and found Ms. Stevenson "very agitated" and spraying a room deodorizer.3 When Ms. Stevenson saw Ms. Cicchetti, she began yelling and cursing, screaming that "f* animals shouldn't be in the workplace."4

A couple hours after this incident, Ms. Stevenson informed the accounting manager that she was sick and needed to go home.5 Ms. Stevenson went home and did not go to the hospital or the doctor that day. The following day, Ms. Stevenson called Ms. Cicchetti and informed her that she was not feeling well and would not be coming to work that day.

Two days later, Ms. Stevenson returned to work and went to speak with Mr. Charles Guest, the president of Hyre. According to Mr. Guest, Ms. Stevenson charged into his office, yelling and cursing about the dog incident. After this meeting, Ms. Stevenson told Ms. Cicchetti that "she could not work" and left the premises.6

Later that same day, Ms. Stevenson filed a complaint with the Occupational Safety and Health Administration regarding the stray dog at the workplace.7 She also went to the emergency room where she was discharged with a diagnosis of "anxiety and stress" and was prescribed Ativan.8

Ms. Stevenson called in sick to work on Feb. 12, 13 and 16. Each time she called in sick she provided no details about her condition.

On Feb. 17, Ms. Stevenson returned to work at 7:00 a.m., and found out that her belongings were moved to another office. Ms. Cicchetti had moved Ms. Stevenson's items to an office that had a door to accommodate Ms. Stevenson's fear of stray animals.9 While Ms. Stevenson attempted to stay at work, she completed little or no work, complained to the police that she felt she was being harassed by the office move and was still "agitated."10 A few hours later, Ms. Stevenson told Ms. Cicchetti that she was not feeling well and left work. However, before leaving the workplace, she placed a copy of the hospital report on the accounting manager's desk. After Ms. Stevenson left the workplace, Mr. Guest gave Ms. Cicchetti permission to change the locks on the office doors.11

Later that day, Mr. Guest sent Ms. Stevenson a letter advising her that she had exhausted her vacation and sick leave and that any additional leave would be governed by Hyre's FMLA policy. Hyre also informed her that she was required to obtain medical certification from her physician or other health care provider by Feb. 24. In addition, she was advised that if she did not provide the required documentation by that date, her absences would be deemed unexcused and her employment would be terminated. Even after receiving this letter, Ms. Stevenson continued to call in sick, until she returned to work on Feb. 24 with a doctor's note excusing her absences from work from Feb. 9 through Feb. 20. Upon her return to work on Feb. 24, Ms. Stevenson discovered that the doors were locked. She knocked on the door until Mr. Guest answered it. Mr. Guest refused to accept her note, as he found it to be insufficient, and gave her back her personal belongings. Although Ms. Stevenson proceeded to get a second note, which Hyre received on Feb. 25 and arguably complied with the FMLA, Ms. Stevenson received a letter stating that she had been terminated effective Feb. 25. Thereafter, Ms. Stevenson brought suit in federal district court against Hyre alleging violations of the FMLA.

Lower-Court Decision

The U.S. District Court for the Northern District of Illinois granted summary judgment for Hyre because it found not only that Hyre did not have notice that Ms. Stevenson was suffering from a serious health condition as defined by the FMLA but also that Ms. Stevenson did not even suffer from a serious health condition as defined in the FMLA. The Seventh Circuit reversed the District Court's decision, finding that issues of fact existed as to whether Ms. Stevenson suffered from a serious health condition, and more notably whether Hyre had "constructive notice" of Ms. Stevenson's serious health condition triggering her rights under the FMLA.

Did Hyre Have Direct Notice?

According to the FMLA and its implementing regulations, an employee must generally inform her employer 30 days in advance that she will need FMLA leave.12 If, however, the need for the leave is not foreseeable, the "employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case."13 In this type of situation the employee is generally expected to give notice "within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible."14 The Seventh Circuit has held that the notice requirement "is not demanding." In this regard, the Seventh Circuit, relying on other Seventh Circuit precedent, stated:

[t]he employee's duty is merely to place the employer on notice of a probable basis for FMLA leave. He doesn't have to write a brief demonstrating a legal entitlement. He just has to give the employer enough information to establish probable cause, as it were, to believe that he is entitled to FMLA leave. Once this is done, it becomes the employer's obligation to request additional information from the employee's doctor or some other source that may be necessary to confirm the employee's entitlement to the FMLA leave.15

Based on this analysis, the Seventh Circuit agreed with the lower court and determined that Ms. Stevenson did not provide sufficient direct notice to Hyre regarding her request for FMLA leave. In this connection, the Circuit Court found that Ms. Stevenson's notice obligations under the FMLA were triggered on Feb. 11, the day Ms. Stevenson went to the emergency room and was diagnosed with "anxiety and stress" and given a prescription for anti-anxiety medication. However, rather than provide notice to Hyre, Ms. Stevenson proceeded to call in sick to work the following three days providing no stated reason for these requests. Furthermore, it was not until Feb. 17, five days after her emergency room visit, that Ms. Stevenson provided Hyre a copy of her emergency room report. The court found that the submission of such report was untimely, as it was provided more than two days after her emergency room visit, and there was no evidence indicating that Ms. Stevenson's situation constituted "extraordinary circumstances," eliminating the two-day notice requirement.16

Constructive Notice?

  • Did Hyre Have Constructive Notice of Ms. Stevenson's Request for FMLA Leave?

Although the Seventh Circuit ultimately found that Ms. Stevenson did not provide Hyre with direct notice of her request for FMLA leave, the court did not conclude its analysis at that point; rather it went on to determine whether Hyre had "constructive notice" of Ms. Stevenson's need for FMLA leave.

In Byrne v. Avon Prods. Inc.,17 the only other Seventh Circuit decision that discusses this issue, the court found that either an employee's "inability to communicate his illness" to his employer or "clear abnormalities" in the employee's behavior may constitute constructive notice of a serious health condition. In Byrne, the plaintiff, an employee with more than four years of highly regarded service to his current employer started to sleep on the job. One day he left work early and when the company tried to call him, they were told by one of his sisters that he was "very sick."18 Furthermore, when someone else from the company tried to reach Mr. Byrne he merely mumbled out phrases and agreed to attend a meeting on a date certain, but did not appear at the meeting. Mr. Byrne was terminated for failing to attend this meeting and for sleeping on the job. He thereafter brought suit against his employer alleging violations of the FMLA.19 The court found that genuine issues of material fact existed as to whether Mr. Byrne's severe depression rendered him unable to work, or to give his employer notice of his condition, and whether changes in his behavior before he was hospitalized (i.e., sleeping on the job), were enough to notify the employer that he suffered from a serious health condition.20

In the Stevenson case, the Seventh Circuit determined that only one of the two approaches recognized by Byrne applied - clear abnormalities - as Ms. Stevenson did not claim an inability to communicate. The Seventh Circuit concluded that a trier of fact could find that "her behavior was so bizarre that it amounted to constructive notice of the need for leave."21 In this regard, it was undisputed that Ms. Stevenson was a model employee prior to the Feb. 9, 2004, incident and that her behavior changed dramatically after the incident with the stray dog. In addition, the court found that a trier of fact could conclude that Ms. Stevenson's behavior on Feb. 9 (stray dog incident), Feb. 11 (encounter with Mr. Guest) and Feb. 17 (calling the police when her items were moved to another office) was so unusual that it gave Hyre constructive notice of her need for FMLA leave.22

Finally, the court determined that a genuine issue of material fact existed regarding whether Ms. Stevenson had a serious health condition. While, the court acknowledged that the doctor's note provided by Ms. Stevenson did not contain sufficient detail about her condition, her prescription for Ativan, the emergency room records, and the deposition testimony from her doctor, created a fact issue as to whether she was unable to work during her absences. Therefore, the absence of a formal FMLA medical certification did not mean that the employee lacked a serious health condition protected under the FMLA.

Meaning for Employers?

While the Seventh Circuit appears to be the only federal appellate court that has given an opinion on the "constructive notice" doctrine with regards to the possible entitlement to an FMLA leave of absence, other courts may follow suit and recognize such situations. Significantly in both the Stevenson and Byrne cases discussed above, each employee had a satisfactory or more than satisfactory work performance record and an otherwise unblemished employment history. Accordingly, employers should carefully scrutinize the circumstances surrounding an employee's otherwise unexplained absence associated with bizarre or aberrant behavior especially with a seasoned employee whose work performance has always been satisfactory and record unblemished.

This case does not mean that an employer cannot run its business and maintain proper order and decorum in the workplace by the imposition of discipline and sanctions for insubordinate, belligerent or disruptive behavior or for unexcused and unexplained absences. However, employers need to be vigilant in trying to scrutinize out-of-the-ordinary conduct, not previously displayed, as indicative of perhaps more than misconduct or deficient performance. An easy task? Of course not, yet employers must be sensitive to those situations.

Dean L. Silverberg is a member of Epstein Becker & Green, in the labor and employment practice group. Melissa Beekman is an associate at the firm.