Employee behavior change can count as FMLA ‘notice’

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in FMLA Guidelines,Human Resources

Issue: You may need to somehow decipher employees' need for FMLA leave from a "sudden behavior change."

Risk: Dramatically expands employees' protection under FMLA.

Action: Warn managers to notify you if recently absent workers show behavior changes that could indicate a "serious" health condition.

Tell managers to perk up if an employee's spotless performance suddenly deteriorates. Reason: That alone, even if the employee never utters a word about a health condition, could qualify as sufficient notice of a serious illness that qualifies for Family and Medical Leave Act (FMLA) job protection.

Typically, workers must give oral or written notice of FMLA leave. But a new court ruling dumps a heavy burden on you to recognize behavior changes that serve as "notice."

Recent case: John Byrne, a night-shift engineer, was a model employee until security cameras caught him frequently sleeping at work. His supervisor called Byrne at home to discuss this, but his sister said he was "very sick." Byrne agreed to a meeting, but didn't show up. He was fired for sleeping on the job and skipping the meeting. After two months of treatment for depression, he was ready to return to work. The company refused to reinstate him, so he sued.

Byrne never gave FMLA notice, the company argued. But the 7th Circuit still sided with him, saying that when notice is not feasible because of the employee's condition, such notice may be excused.

In fact, the court said, Byrne's dramatic change in behavior could be enough notice of a serious medical problem that qualifies under FMLA. (Byrne v. Avon Products, Inc., No. 02-2629, 7th Cir., 2003)

Final tip: When an employee is absent and you suspect his absence could be due to an FMLA-qualifying reason, send the employee a letter that preliminarily designates the time off as FMLA leave. Include a blank medical certification form. Indicate that the designation will become final if the employee provides a certification form completed by his doctor within 15 days. Also mention that you reserve the right to have the worker submit to a second (and even third) medical exam, as the law allows.

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