"Does the employer have FMLA/CFRA obligations when an absent employee never specifically asks for leave? "
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FMLA UPDATE
Constructive Notice of Need for FMLA Leave
May Exist Where There are Clear Abnormalities
in Employee’s Behavior
By Christopher W. Olmsted, Esq.
So what does a dog have to do with FMLA leave rights? Read on, and you'll discover how leave rights can arise in unusual circumstances.
Where an employee requests a leave of absence because of a serious health condition, the employer’s obligations under FMLA and California’s CFRA are fairly straightforward. But does the employer have FMLA/CFRA obligations when an absent employee never specifically asks for leave?
The answer, in some circumstances, may be “yes.” Employees may have FMLA/CFRA rights even when they have not asked for leave. Unfortunately for the employer, some skilled guesswork is needed in order to avoid liability.
A recent Federal Seventh Circuit case, Stevens v. Hyre Electric Co., follows a rule that has not been expressly adopted in our Ninth Circuit—yet. Employers may be put on “constructive notice” of an employee’s need for FMLA leave. The Seventh Circuit has held that either (1) an employee’s inability to communicate his illness to his employer or (2) clear abnormalities in the employee’s behavior may constitute constructive notice to the employer of a serious health condition.
Case Study Facts
Suprise Visit By Stray Dog Leads To Bizarre Behavior
The facts of the Stevenson case provide a powerful illustration of how easy it is for an employer to overlook “constructive notice” of the need for protected leave. This article reviews those facts and then provides some practical tips for avoiding liability.
Beverly Stevenson was a long term employee of Hyre Electric Co. with no history of misconduct or health problems. That changed on February 9, 2004 when a stray dog climbed through the window of the Hyre warehouse where Stevenson worked and approached her.
Ms. Stevenson reacted strangely to the stray dog. She immediately felt physical symptoms, including a headache, a rush of blood to her head, and a tightening of her neck and back. Stevenson’s supervisor Mary Cicchetti recounted that immediately after the dog incident, she entered the office area where Stevenson worked and found Stevenson very agitated and “spraying Glade,” a room deodorizer. Upon seeing Ms. Cicchetti, Ms. Stevenson began yelling and cursing, screaming that “f**king animals shouldn’t be in the workplace.” Cicchetti said that Stevenson was “very intimidating” and belligerent, and that her agitated behavior lasted three or four minutes.
She left work soon after. She called in sick for the next few days, but returned on February 11th. She had a meeting with the company president, Mr. Guest. It was an explosive encounter. Guest testified that “[Stevenson] charged into my office yelling and in a very aggressive manner.” He continued, “She said it was wrong for her to be subjected to this kind of thing in the office, to have f**king dogs running by her desk and threatening her, and that management needs to do something about this.” He tried unsuccessfully to calm her down, but she continued to scream at him.
Later that day, Ms. Stevenson went to a hospital emergency room. She was examined by a doctor after complaining of three days of headaches, insomnia, anxiety, and loss of appetite following an “emotionally stressful incident at work.” An EKG test and CAT scan both came back normal. Stevenson was discharged with a diagnosis of “anxiety and stress” and was prescribed Ativan.
On February 17, Stevenson went to work, but didn’t stay long. Her supervisor, Ms. Cicchetti, had boxed up the contents of Stevenson’s desk and moved them to another room. Cicchetti claimed that she did so “to accommodate Stevenson’s fear of stray animals.” Stevenson stayed at work for a few hours, but she was still agitated, completed little or no work, and ultimately called the police because she believed that she was somehow being harassed. Soon after, she told Cicchetti that she was not feeling well and left work. Before leaving, Stevenson left the hospital’s report of her February 11 emergency room visit on a manager’s desk.
After Stevenson left, Guest gave Cicchetti permission to change the locks on the doors of Hyre’s office.
On February 20th, Ms. Stevenson visited her doctor. The doctor wrote a note excusing her absence from February 9 through February 20. However, the note did not state that Ms. Stevenson had been unable to work during that time.
Ms. Stevenson returned to work briefly on the 24th. The company told her, through the union, that the note was not adequate to return her to work. When the union asked for more details on the type of doctor’s note needed, the company did not respond.
On March 9, Hyre sent a letter to Stevenson stating that she had been terminated effective February 25.
The Lawsuit and Case Holding
A lawsuit ensued. Stevenson claimed that Hyre had notice that she was suffering from a serious health condition and thus violated her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., when it fired her. Typically, an employee must inform her employer 30 days in advance that she will need FMLA leave. When the need for FMLA leave is not known in advance, however, “an 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.” 29 C.F.R. § 825.303(a). Federal regulations suggest that typically, the minimum notice period is one or two days.
The court found that Ms. Stevenson had not provided notice of her need for leave. However, the court also examined whether Hyre had been put on “constructive notice” of an employee’s need for FMLA leave.
As stated above, constructive notice can occur where either (1) an employee’s inability to communicate his illness to his employer or (2) clear abnormalities in the employee’s behavior may constitute constructive notice of a serious health condition.
The court ruled out option one. Ms. Stevenson could communicate. Instead, it turned to option two. “Lengthy encounters of yelling and swearing at one’s superiors so severe that a company locks out an employee with a previously unblemished record for safety concerns, coupled with that employee’s calling the police because her belongings have been moved to another desk, are undeniably unusual and could be viewed by a trier of fact as unusual enough to give Hyre notice of a serious mental health condition. Of course, the factfinder could find that Stevenson just had a bad temper that erupted during the period in question. The point here is that this is not a decision the court can make as a matter of law.”
Fallout For Employers
The Seventh Circuit’s ruling in Stevenson follows earlier cases in that circuit holding that constructive notice is adequate to trigger an employer’s obligation to provide FMLA leave. However, in prior cases, the employee was so seriously ill, and incapable of communicating, that the need for leave was obvious. In the Stevenson case, the employee was acting in a rude, angry, bizarre way, but she was not obviously seriously ill.
Like so many other rules in the realm of employment law, this one places employers between the proverbial rock and hard place. Retaining employees who misbehave in bizarre, angry ways causes operational disruptions and certainly can lead to harm to person or property. Terminating such emloyees, however, can lead to a discrimination lawsuit. The court’s holding can be criticized as impractical and unrealistic.
Until we have clear guidance from the Ninth Circuit and California state courts telling us that the Seventh Circuit rule does not apply in California, employers covered by the FMLA and CFRA should consider extending leave rights in instances where employees miss work after exhibiting abnormal or bizarre behavior.
Practical Tips
Recommended best practices may include:
- Train supervisors to report abnormal behavior that may be connected to a medical condition, followed by absence from work. Carefully investigate and consider whether or not FMLA/CFRA leave rights may be implicated. (Legal advice may be prudent.)
- Provide eligible employees with notice of their FMLA/CFRA rights, a leave request form, a medical certification form, and an employer’s leave response form (ask me if you do not have any of these forms).
- Grant leave conditionally, subject to medical certification and any other employer conditions for leave.
- Take appropriate steps to obtain information, through the certification and second opinions if necessary, to confirm or rule out coverage under FMLA/CFRA.
- Where workplace misconduct is connected to the serious medical condition, seek legal advice before taking adverse action against the employee.
Download full Legal Update in pdf format.
This article presented is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2007 by Barker Olmsted & Barnier, APLC. All rights reserved.
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FMLA_Update.pdf
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