If an employee openly asks for Family and Medical Leave (FMLA) time off, that’s an easy call to make. But how about bizarre behavior? Does that constitute “notice” of the need for leave? And if so, wouldn’t any misbehavior be notice? Our expert sorts it out.
Roy A. Ginsburg, a partner at Dorsey & Whitney LLP in Minneapolis (and proprietor of quirkyemploymentquestions.com), asks the upsetting question: “Can any employee fired for bad behavior later say, ‘I should have been offered FMLA instead of a pink slip’?”
The Case in Brief
The question comes up because of a recent court case (Stevenson v. Hyre Electric Co., No. 06-340). The facts were unusual. Stevenson had “no documented history of misconduct or health problems” at her employer, but “that changed … when a stray dog climbed through the window of the warehouse where she worked and approached her.”
She reacted adversely, “yelling, cursing, and screaming” at her co-workers. She left work that day because she was feeling ill, and she did not work the next day. Two days later, she had an agitated interaction with the company’s president, yelling profanities about the dog.
Ultimately, she was terminated. She then sued, alleging FMLA violations.
Employer ‘Should Have Realized’
The district court found that the worker had failed to satisfy the FMLA notice requirements. The appellate court reversed, saying that notice is not always necessary—particularly where the employer has “constructive notice” of the need for the leave.
Constructive notice may occur when the employee is unable to communicate an illness or when “clear abnormalities” in the employee’s behavior provide the employer notice of a serious health condition. Finding that that might have been true in Stevenson’s situation, the court sent the case back for further review.
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The case raises two perplexing problems, Ginsberg notes.
First, what obligations are imposed on managerial employees—few of whom have psychological expertise—to discern when employees are suffering from serious mental health problems warranting FMLA leave? Clearly the assessment required will far exceed the skill sets of most managers.
Second, if the employer fails to pick up on the “constructive notice” cues, may a discharged employee later assert that he or she was deprived of a leave that would have remedied the problem?
Ginsburg offers a few examples:
When an employee engages in sexual harassment of another employee, is this a reflection of a mental health problem that could be improved by FMLA leave?
If an employee is not performing his or her job duties adequately, does this reflect depression or some other mental illness?
Is an employee discharged for accessing pornography at work simply acting on an uncontrollable impulse due to mental health issues?
In each of the examples, the outcome might likely have been discharge. In each instance, however, the employee could retroactively argue that a serious mental health condition precipitated these behaviors, a fact the employer should have realized and addressed by offering FMLA leave.
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What to Do Now
Employers now have two options, Ginsburg says. One: Disregard the decision on the basis that the facts were extraordinary and the analysis was aberrant. Two: Evaluate their firms’ FMLA policies to ensure this type of situation is considered carefully.
Ginsburg recommends several questions that may be appropriate when confronting an employee exhibiting unusual behaviors:
How long has the individual been employed?
Has the employee previously exhibited any mental health issues?
Would allowing the employee to continue working put other employees at risk?
Has the employee requested FMLA leave?
Should the employee be offered FMLA leave, even without a request, and
Would a leave assist the employee to obtain help from a health care professional?
Another cautious step employers might consider is discussing with a healthcare professional whether the employee’s behaviors are typically associated with any recognized mental health issues. Similarly, the healthcare professional could advise on whether the employee’s problems likely would be assisted by a leave.
By examining these questions and taking these steps, an employer can minimize the risk that it will find itself in violation of the FMLA.