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Employee's bizarre behavior can count as FMLA 'notice'

By Mindy Chapman, Esq., Mindy Chapman & Associates
11/20/2007 - 3:30pm
FMLA

Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

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If you’ve never had any formal psychiatric training, maybe it’s time you put your business plan aside and register for Psych 101. Why? A new court ruling shows that the FMLA now requires you and your supervisors to play psychiatrist, too.

Typically, employees must notify you if they have an FMLA-qualifying “serious” physical or mental condition. But what if the employee, herself, isn’t aware of this need? Is it up to you and your supervisors to recognize any behavior changes that may indicate the presence of a serious FMLA-qualifying condition? In cases of psychiatric problems it likely does, as the following case shows.

Case in Point: Beverly Stevenson, an electric-company receptionist, was a model employee for eight years. All that changed the day a stray dog climbed through a window and approached her in the warehouse. Stevenson became unhinged. She started spraying deodorizer on the dog and yelling and cursing. She then went home, reporting a rush of blood to her head and backache and headache.

The next day she walked into the president’s office and began to scream and swear about the stray dog for 10 minutes. Stevenson left work and contacted OSHA about the dog. She then went to the emergency room complaining of a headache, insomnia and anxiety related to an “emotionally stressful incident at work.” Her EKG and CAT scans were normal and she was discharged with a diagnosis of “anxiety and stress” and given oral medication.

She called in sick the next three days. Upon her return, she discovered her desk had been moved. Her response: call the police. She left work again feeling distressed. This time, the company changed the locks out of “fear of what she might do” and fired her.

Stevenson filed a FMLA lawsuit. The company argued that it wasn’t liable because she never notified it that she needed FMLA leave. The company cited cases saying that calling in sick is not notice. (Stevenson v. Hyre Elec. Co., 7th Cir., 10/16/07)

How did this case end…and what lessons can be learned?

The court went for Stevenson’s “the dog ate my sanity” argument. It said employees only have to let their employers know they may need FMLA leave if they’re capable of doing so. In this case, the court said Stevenson’s sudden erratic behavior should have put the company on notice that she might be suffering from a serious health condition.

Here’s how the court put it: “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 [an employer] notice of a serious mental health condition ... and was so bizarre that it amounted to constructive notice of the need for leave.”

3 Lessons Learned … Without Having to Go to Court

Observe Abrupt Changes in Behavior.

When a perfect employee with a perfect record has a sudden behavior change—sit up and take “notice” … literally. The court, in this case, is saying that counts as an employers’ constructive notice for FMLA leave. We are seeing these cases over and over—which means it is a trend.

Remember, FMLA is an Employee-Friendly Law. It was created to help employees balance health issues (for themselves and family) with their job. Don’t be so quick to dismiss an employee on a technicality.

Don’t ‘Psych Out’ an Employee. As the court pointed out, sometimes employees with psychiatric disorders don’t know they have a problem. This is a fundamental difference between mental and physical illness. Employees know when they have broken legs or symptoms of other problems, like blurry vision. But mental disorders cloud up the ability to think clearly, which is what the ability to ask for FMLA leave requires.

Tags: employees, fmla, fmla leave

Small Business Tax Deduction Strategies: 10 tips on Section 179, home office write-offs for the self-employed, tax deductions for vehicles, rental depreciation, real estate capital gains and more!