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I'm Not Sleeping, I'm on Leave

The 7th Circuit Court of Appeals in Chicago recently ruled that the firing of an employee for sleeping on the job could violate the Family and Medical Leave Act (“FMLA”) and ordered that the employee be permitted to proceed to trial on his claim.

The case, Byrne v. Avon Products Inc., involves John Byrne, an engineer who worked the night shift. In November 1998, Avon installed a security camera in its employee break room, following a co-worker’s report that Byrne had been sleeping in the break room. When security videos confirmed that Byrne was using the break room to sleep and read for extended periods, Byrne’s supervisor went to discuss the situation with him. Byrne had left work early on that day, telling a co-worker that he was not feeling well and would be out the rest of the week. Byrne’s supervisor attempted to contact him by phone, but Byrne’s sister said he was “very sick”. Byrne was later reached, and while he was somewhat incoherent, he agreed to meet with his supervisor. Byrne failed to appear for the meeting and, without further discussion, Avon terminated his employment for sleeping on the job and missing the meeting.

Unbeknownst to Avon, at the time of his firing, Byrne was suffering from severe depression, hallucinations, and panic attacks and had attempted suicide. Following two months of treatment, Byrne was cleared to return to work, but Avon refused to rehire him.

The 7th Circuit held that a jury could find that the dramatic change in Byrne’s on the job behavior gave sufficient notice to Avon that Byrne had a medical problem or, alternatively, find that notice might have been excused altogether because the need for FMLA leave was unforeseeable. According to the court, a jury could find that “[i]nstead of treating Byrne’s final two weeks as goldbricking, Avon should have classified this period as medical leave – if Byrne indeed was unable to give verbal or written notice, or if the sudden change in his behavior was itself notice of his mental problem.” This conclusion would require that Byrne’s “unproductive time preceding the discharge be reclassified as unpaid leave, with the restitution [by Byrne] of wages received.”

Conclusion: This case highlights the expansive definition of “notice” for purposes of administering FMLA leave. Under the Department of Labor’s implementing regulations, an employee does not have to make mention of the FMLA to trigger its protections. Rather, an employee (or the employee’s representative) only needs to convey that the employee may have a serious health condition. Upon receipt of such a communication, it is incumbent upon the employer to follow up and clarify the situation, as the employer is considered to have “constructive notice” that FMLA leave may be necessary. Here, the court stretched the concept of constructive notice to the point where an employee’s aberrant behavior can give the employer “constructive notice” of the need for FMLA leave. The court, however, had the benefit of hindsight. The decision highlights how important it is for an employer to be sensitive to its obligations under the FMLA.