In Stevenson v. Hyre Electric Co., the United States Court of Appeals for the Seventh Circuit recently reversed an order granting summary judgment in favor of the employer on a claim that the employer violated the plaintiff’s rights under the Family Medical Leave Act ("FMLA") by terminating the plaintiff’s employment.  The court found that there was a triable issue of fact as to whether the employer was placed on notice of the plaintiff’s need for FMLA leave based upon the plaintiff’s bizarre behavior.

The court noted that under the FMLA, an employee is required to provide notice to the employer of the need for FMLA leave.  Once notice is provided, it becomes the employer’s obligation to request such additional information from the employee’s doctor as may be necessary to confirm the employee’s entitlement to FMLA leave.

The court found that the plaintiff failed to sufficiently notify the employer of her need for FMLA leave.  The court specifically found that the mere fact that the plaintiff called in sick was insufficient to place the employer on notice of a need for FMLA leave because being sick is not akin to having a "serious health condition" as required by the FMLA.

However, the court also found that while no direct notice was provided by the employee, constructive notice may have been provided.  The plaintiff had been a good employee with no record of misconduct or health problems.  When a stray dog entered the plaintiff’s working space, the plaintiff freaked out.  Over the following two weeks, the plaintiff showed numerous signs of bizarre behavior including outbursts and cursing.  In addition, the plaintiff essentially stopped working, started calling in sick, and provided several after-the-fact doctor’s notes excusing her from work.

The court of appeal explained that "clear abnormalities" in an employee’s behavior may constitute constructive notice of a serious health condition.  The court found that there was sufficient evidence in this case to create a genuine dispute about whether the plaintiff’s behavior met this standard and thus the order granting summary judgment was improper.

The lesson for employers from this case is that courts will not allow employers to sit back and wait for an employee to directly inform the employer of the need for FMLA leave.  Instead, courts are likely to require employers to take a more active role in observing employee behavior and initiating the FMLA process when it becomes clear that an employee may have a need for FMLA leave.