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Behavior change can spark FMLA notice

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in FMLA Guidelines,Human Resources

Perk up if an employee's spotless performance suddenly deteriorates. That alone, even if the employee never mentions a word about a health condition, could qualify as sufficient notice of a serious illness that qualifies him for job-protected leave under the Family and Medical Leave Act (FMLA).

Typically, employees must notify you orally or in writing of a FMLA-qualifying serious illness. But a recent court ruling puts a new burden on employers to recognize behavior changes that may indicate the presence of a serious condition that qualifies for FMLA protections. And the case raises the legal risk for companies that fire workers based on misconduct that could be related to a medical condition.

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

The company argued that Byrne never gave notice of leave, as FMLA requires. But the 7th Circuit sided with Byrne, saying that when notice is not feasible because of the employee's condition, such notice may be excused. In fact, the court said the employee's dramatic change in behavior could, in itself, be sufficient notice to the company of a serious medical problem that qualified for FMLA leave. (Byrne v. Avon Products, Inc., No. 02-2629, 7th Cir. 2003)

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