Quirky Question # 194:
One of our managers is known for being very “tough.” None of the employees he supervises has filed a complaint against him, either internally or externally, but rumors of borderline abusive behavior kept reaching our executive suite. As a result, we investigated. The rumors were well grounded factually – the guy was much rougher on employees than we realized. Based on our investigation, we’d like to fire him. But, he falls into two protected classes. Given that fact, we are anxious about a discrimination lawsuit if we terminate his employment. Got any advice? What are the risks of doing nothing versus doing something? Read more
Quirky Question # 10:
Not long ago, a stray dog wandered into our warehouse. It did not hurt anyone but it apparently frightened one of our employees. In the days and weeks after the incident, our employee began behaving more and more bizarrely. She yelled at her supervisors and co-employees. In a conversation with our company’s President, she began yelling at him about the “f***ing dog.” During this time, she also missed a fair amount of work. Sometimes she would show up and then leave soon thereafter. On other days, she simply did not show up. One day, she called the police to complain of harassment because her supervisor had moved her belongings into a nearby office. After she had used up her paid leave, we notified her how to apply for FMLA leave. She never did so and not long thereafter, we discharged her. She now has sued our firm for violating the FMLA. Did we do something wrong? How can she sue us for an FMLA violation if she never notified us that she needed to take FMLA leave?
Okay, I admit it. As some of you undoubtedly realized, I did not receive this question from a client or a reader. The fact pattern is derived from a case that was decided very recently, Stevenson vs. Hyre Electric Co., No. 06-3401 (7th Cir. October 16, 2007).
[Occasionally, I will address a very recent decision in my questions. To make it easy for you to access this material, I will organize it under the topic addressed (here, FMLA), as well as a new category we've initiated with this question called "Recent Decisions."]
Turning then to the question presented, the facts described above are drawn from the Stevenson case. As the Seventh Circuit described, the employee had “no documented history of misconduct or health problems” at her employer, but “[a]ll that changed . . . when a stray dog climbed through the window the warehouse where [she] worked and approached her.” Stevenson had an immediate adverse reaction to this situation which combined spraying air freshener around her work area and “yelling, cursing and screaming” at her co-workers for several minutes. She left work later that day because she was feeling ill and did not attend work the following day.
Two days after the incident, Stevenson had a very agitated 10-minute interaction with the Company’s President, again yelling profanities about the dog. The President was unable to calm her down. The same day, Stevenson filed an OSHA complaint about the dog. She later left work to visit the Emergency Room. Over the next week or so, Stevenson continued to miss work and continued to behave oddly. The Company sent Stevenson a letter describing her rights under the FMLA but Stevenson failed to notify her employer that she desired FMLA leave.
Anxious about Stevenson’s continuing aberrant behavior, the Company changed the locks on the warehouse. On March 9, approximately one month after the dog incident, the employer terminated Stevenson’s employment.
In granting the employer’s motion for summary judgment, the Illinois district court concluded that the employee had failed to satisfy the requirements of the FMLA that she provide her employer notice of her need for FMLA leave. The federal appellate court reversed this decision.
As the Seventh Circuit pointed out, under the statutory scheme of the FMLA and the accompanying federal regulations, an employee is obligated to notify her employer that she will need FMLA leave “30 days in advance.” When the need for leave is not known in advance, however, the employee should give notice “as soon as practicable under the facts and circumstances of the particular case.” The regulations anticipate that notice will be provided within one or two days of the date the employee learns of the need for the leave, except in “extraordinary circumstances where such notice is not feasible.” In this case, the appellate court found that Stevenson was obligated to provide notice to her employer of her need for FMLA leave after her visit to the ER and the diagnosis by the ER physicians. She failed to do so.
The appellate court went on, however, to point out that notice is not always necessary. In particular, the court stated, notice is not necessary where the employer has “constructive notice” of the employee’s need for the leave. Relying on an earlier 7th Circuit decision, the appellate court observed that constructive notice may occur when the employee is unable to communicate her illness or when “clear abnormalities” in the employee’s behavior provide the employer constructive notice of the serious health condition. In the Stevenson case, the circuit court concluded that Stevenson’s clear behavioral abnormalities could have put the employer on notice of her need for FMLA leave. Further, the court found that her condition could have constituted a “serious health condition” under the FMLA that would have qualified her for leave. The court therefore reversed, sending the case back to the trial court to reach factual determinations on both the constructive notice and serious health condition issues.
The Stevenson case is intriguing on multiple levels. My concern is that it imposes on employers and their management employees, very few of whom have any psychological or medical expertise, an unrealistic obligation to discern when employees are suffering from a serious mental health problem warranting FMLA leave. If the employer fails to pick up on the cues that should provide it “constructive notice,” a discharged employee may later be able to assert an FMLA claim that she was deprived of a leave opportunity that would have enabled her to remedy the problem.
For example, when an employee begins engaging in severe sexual harassment of another employee, is this a reflection of a mental health problem that would be improved by an FMLA leave? If an employee is not performing his job duties adequately, does this reflect depression or some other mental illness? If an employee is belligerent and bellicose toward his co-workers, does this mirror a mental health issue that warrants leave? In these and hundreds of other contexts, behaviors by employees may reflect mental health problems, or they may not.
Yet the standard for determining whether an employee has provided the employer “constructive notice” of a “serious health condition” will be difficult to determine and, in my view, somewhat malleable. Employers may discover, long after the fact, that the problem they thought they had solved by terminating the problem employee actually should have been addressed through leave and corresponding medical treatment. That possibility will inject a level of uncertainty into discharge decisions that employers previously thought were unassailable.