Skip to main content
A Better Partnership


Oct 2007
October 19, 2007

Employee Notice of Need for FMLA Leave:
When Actions Speak Louder Than Words

Under the Family and Medical Leave Act (FMLA), employees are required to provide their employers with notice of their need for leave. How much and what kind of notice depends upon the circumstances. If the leave is foreseeable (e.g., elective surgery), the employee is supposed to notify the employer at least 30 days ahead of time, or at least as far in advance as possible. If the leave is not foreseeable, however, the employee is supposed to give the employer notice as soon as practicable, and no later than 2 business days after learning of the need for leave. The content of the notice can vary as well, but employees are required to at least give the employer enough information so that the employer knows or has reason to know that the employee may need FMLA leave. It is well-settled that the employee does not have to specifically mention "FMLA leave" as part of the request.

In a recent opinion, one Federal Court of Appeals reaffirmed that an employee's actions (as opposed to her words) may be sufficient to put an employer on notice of the need for FMLA leave. In Stevenson v. Hyre Electric Co., No. 04-C-7990 (7th Cir., Oct. 16, 2007), an otherwise good employee had a bad experience when a stray dog wandered into the workplace. Ms. Stevenson immediately became very agitated and she screamed and cursed at her supervisor over the incident. Stevenson then told another manager that she was "ill" and that she was going home. Two days later, she returned to the workplace and confronted the company president in a loud and profane manner. Several other employees witnessed the confrontation. Stevenson then left work. Later that day she filed a complaint with OSHA and went to a local hospital emergency room, where she was diagnosed with anxiety and given a prescription.

Over the course of the next few days, Stevenson sought additional treatment, although she only notified her employer and her union representative that she was "ill" or that she was "off sick." She tried to return to work a little more than a week after the incident and found her belongings boxed up. She then called the police and claimed she was being harassed. Stevenson then left work and left the emergency room papers with a manager. The employer sent Stevenson a letter notifying her that she could request FMLA leave. Stevenson continued to call in "sick," and obtained a doctor's note excusing her from work for the entire time period. At no time, however, did the doctor instruct Stevenson not to work. Her union told her to remain off work and provided the employer with the doctor's note excusing Stevenson from work. Stevenson attempted to return to work, but found the door locks had been changed. The company president gave Stevenson her belongings and told her she was not coming back into the office. Stevenson then obtained a note from her doctor releasing her to return to work the next day. She faxed that note to the union, who in turn gave it to the employer. Stevenson was not allowed to return to work and was terminated.

Stevenson sued under the FMLA. Her case was dismissed by the trial court, but on appeal, the Court of Appeals reinstated her claim. According to the Appeals Court, Stevenson never verbally gave her employer sufficient notice of her need for FMLA leave. Calling in "sick" was not enough. However, the Court held that her behavior may have been enough to put the company on constructive notice of her need for leave. Relying on its earlier decision in Byrne v. Avon Products, 328 F.3d 379 (7th Cir. 2003), the Court reaffirmed that an employee's "inability to communicate his illness to his employer or clear abnormalities in the employee's behavior may constitute constructive notice of a serious health condition" for purposes of the FMLA. According to the Court, Stevenson's prior unblemished record and her bizarre behavior following the stray dog incident—lengthy encounters of yelling and swearing at her supervisor, calling the police, etc.—could be viewed as unusual enough to put the employer on notice of a serious health condition.

The Seventh Circuit's decisions in Byrne and Stevenson are very troubling for employers who are trying to comply with the FMLA and at the same time ensure an orderly and safe workplace. Faced with Ms. Stevenson's behavior, many employers would likely think discipline or discharge long before thinking about the FMLA. And it should be noted that nothing in the Seventh Circuit's opinion condoned Ms. Stevenson's behavior or prohibited her employer from disciplining her for the profane outbursts toward her manager and the company president. All that aside, the Stevenson decision serves as a strong reminder that the FMLA has many gray areas—particularly when it comes to employee notice obligations. Employers faced with ambiguous communications by an absent employee or unprofessional or bizarre behavior on the part of an employee would be well advised to consider whether a leave of absence of some sort may be an appropriate tool in dealing with the overall situation. Additionally, if the employee's behavior truly did violate the employer's rules of conduct, discipline may be something that is handled separately when the employee returns.

If you have any questions regarding the Stevenson decision, the FMLA in general, or any other labor and employment matter, please feel free to contact any member of our Labor and Employment Practice Group.

NOTICE. Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you.

By clicking the ‘ACCEPT’ button, you agree that we may review any information you transmit to us. You recognize that our review of your information, even if you submitted it in a good faith effort to retain us, and even if you consider it confidential, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.

Please click the ‘ACCEPT’ button if you understand and accept the foregoing statement and wish to proceed.



+ -