One compliance gray area for employers under the family and medical leave laws concerns the notice employees must provide when they need to take leave. Of course, the easiest situation is when an employee fills out a leave request form and gives you a medical certification supporting the need for leave. But as a recent case shows, whether an employee has fulfilled his or her notice obligation isn’t always so clear.
Stray Puppy Sparks Outbursts
Beverly Stevenson was a receptionist for Hyre Electric Co. in Illinois for several years without incident. One day, however, a stray puppy climbed through the window of the Hyre warehouse where Stevenson worked and approached her. She immediately got a headache and felt a rush of blood to her head and a tightening of her neck and back. She began spraying room deodorizer and screaming that “[expletive] animals shouldn’t be in the workplace.” Stevenson then went home, saying she wasn’t feeling well, and she called in sick the next day.
Over the next two weeks, Stevenson allegedly screamed at Hyre president Charles Guest about the dog incident and missed work repeatedly, calling in to say she was “sick” or “wasn’t feeling well.” When she was at work, she had aggressive outbursts. She discussed the dog incident with her union representative and filed an Occupational Safety and Health Administration complaint over the dog.
Concerned about her behavior, Hyre notified Stevenson that her paid time off had run out and that she needed to submit a medical certification within a week—by February 24—to qualify for Family and Medical Leave Act (FMLA) leave, or else she would be terminated for unexcused absences. Stevenson continued to call in sick. A few days before the deadline, Stevenson obtained a doctor’s note excusing her absences for the past two weeks but lacking medical details. She gave that note to the union, which passed it along to Hyre.
No Return to Work
On February 24, Stevenson showed up for work, only to find that the locks had been changed. Guest sent her away, and later that day he told the union that Stevenson’s doctor’s note wasn’t sufficient for her to return to work. She then submitted a second doctor’s note, excusing her through February 24. Stevenson didn’t hear back from Hyre and didn’t return to work. A few weeks later, she received a letter from the company stating that she had been fired.
Stevenson sued, claiming that Hyre violated her FMLA rights. Hyre countered that it wasn’t obligated to grant FMLA leave because Stevenson never properly notified the company that she needed to take the leave.
Abnormal Behavior Indicates Need for Leave
A federal appeals court has now ruled that Stevenson’s bizarre behavior may have put Hyre on notice of her need for FMLA leave.1 An employee’s notice duty under the FMLA, said the court, is merely to place the employer on notice of a probable basis for the leave. Thus, the employee must give the employer enough information to establish reason to believe that the employee has a serious health condition and is entitled to FMLA leave. And, “clear abnormalities” in an employee’s behavior may amount to notice of a serious health condition. The obligation then shifts to the employer to request additional information from the employee’s doctor or other source to confirm the employee’s FMLA entitlement.
Here, the sudden and dramatic shift in Stevenson’s behavior sparked by the stray dog incident indicated that she may have had a serious mental health condition. Stevenson will now get to take her case to a jury.
How To Survive an Employee Lawsuit: 10 Tips for Success
With lawsuits against employers becoming ever more common—and jury verdicts skyrocketing—your risk of getting sued has increased dramatically even if you’ve done all the right things. Learn how to protect yourself with our free White Paper, How To Survive an Employee Lawsuit: 10 Tips for Success.
Notice Overview
This decision underscores that, depending on the circumstances, an employee is not required to provide formal notice of the need for leave under the FMLA or the California Family Rights Act (CFRA). If there are strong signs that an employee may need leave, even though he or she has not requested it, the employer must take the next steps by following up to confirm the need for leave and notifying the employee of his or her FMLA/CFRA rights.
Here’s a quick overview of the notice requirements:
- Employees may be required to provide 30-day advance notice of the foreseeable need to take FMLA/CFRA leave.
- When leave is not foreseeable, or it’s not practical to provide 30-days’ notice, an employee must provide as much advance notice as possible. Ordinarily, however, notice should be made within no less than one or two business days of the event giving rise to the need for leave.
- An employee doesn’t have to inform you that he or she needs leave in writing or even to mention FMLA or CFRA. The employee’s responsibility is to communicate information that would be sufficient to put you on notice that he or she has a reason for missing work that would qualify for family and medical leave. When there is a doubt as to whether the reason qualifies, it is your duty to make appropriate follow-up inquiries.
1 Stevenson v. Hyre Electric Co., U.S.C.A. 7th Cir. No. 06-3501, 2007