Asking for time away from work is a basic requirement for an employee seeking job-protected leave under the Family and Medical Leave Act.  However, employers are expected to assume that an employee needs leave, and to provide it to employees in certain circumstances where such need is readily apparent. In Stevenson v. Hyre Electric Co., a recent decision from the Seventh Circuit Court of Appeals, an employee was judged eligible for FMLA leave that she never requested based on her erratic behavior.

The incident began when a stray dog wandered into the warehouse where the plaintiff worked. She became very agitated, complaining about physical symptoms and began repeatedly spraying room deodorizer throughout the facility. Stevenson then began screaming and cursing at her supervisor and left work. She called in the next day and said that she was not feeling well, and would not be into work that day. She returned to the workplace two days later, and again began cursing and yelling at the company’s president over the dog incident.

Later that day, the employee filed a complaint with OSHA, and again left work, this time checking herself into the local hospital’s emergency room. This pattern repeated itself several times, until the employer notified the plaintiff that she had exhausted paid leave, and must request and provide medical certification for FMLA leave if she needed to miss additional time away from work. She was also told that she needed a doctor’s note to return to work, and the company changed its locks to prevent her from making an unauthorized return.

When the plaintiff did not respond to these requests, she was terminated. She then sued, claiming that she was not provided leave under the FMLA. The Seventh Circuit first concluded that Stevenson was not capable of realizing that she needed to request FMLA leave, and was therefore excused from making a formal request. The employer had constructive notice of her need for FMLA leave based on her obviously bizarre behavior. The court also concluded that the plaintiff was incapacitated for a sufficient period of time to meet the FMLA’s definition of a “Serious Health Condition.” The Seventh Circuit reserved judgment on whether the plaintiff had met the medical certification requirements.

This case demonstrates that employers cannot feign ignorance of an employee’s deteriorating health condition. In situations where the facts indicate that the employer knew or reasonably should have known that the employee was having physical or mental health problems, the employer will be expected to initiate the FMLA leave process, and to provide leave absent clear disqualifying criteria.