Constructive notice under the Family and Medical Leave Act.

• Author: Rennie, Jillian J.

John Byrne had been a model employee for more than four years before he began to abandon his workstation to sleep on the job. (1) His employer, Avon Products, discovered his behavior and fired Byrne for misconduct when he failed to show up for a scheduled meeting to discuss it. The day of the missed meeting, Byrne hallucinated, attempted suicide, and was hospitalized. After two months of therapy, his "massive depression" had improved, but his employer would not rehire him. (2) He filed claims under the Americans with Disabilities Act (ADA) (3) and the Family and Medical Leave Act (FMLA). (4)

In Byrne v. Avon Products, Inc., the Seventh Circuit allowed Byrne's FMLA claim to proceed despite Byrne's failure to give his employer timely actual notice that he needed leave, (5) as required by regulation. (6) The court developed the following test for "constructive notice" of an employee's need for FMLA leave:

If a trier of fact believes either (a) that the [employee's] change in behavior was enough to notify a reasonable employer that [the employee] suffered from a serious health condition, or (b) that [the employee] was mentally unable either to work or give notice [in the time period of the bizarre behavior], then he would be entitled to FMLA leave [for that period]. These are independent possibilities. (7) While the Seventh Circuit and district courts within its jurisdiction have applied the Byrne test in other cases, (8) no court outside of the Seventh Circuit has developed standards for constructive notice under the FMLA. (9) One district court outside of the Seventh Circuit has observed that allowing constructive notice seems incompatible with the governing FMLA regulations. (10)

This Comment argues that the Byrne constructive notice standard is a step in the right direction, but is ultimately unsatisfactory. Instead, constructive notice should be imputed to the employer only when the employee's behavior allows the employer to reasonably infer that an FMLA-qualifying health condition has caused the employee's failure to give the required notice. This proposal improves upon prong (a) of the Byrne test described above while leaving prong (b) untouched. The standard also should require a short time window for constructive notice in order to ease the burdens that the test imposes upon employers.

This Comment proceeds as follows. First, it discusses the importance of allowing constructive notice under the FMLA in order to allow employees with mental health conditions realistically to benefit from the statute. Second, it examines the Seventh Circuit's application of the Byrne test in another case, Stevenson v. Hyre Electric Co., (11) which illustrates three aspects of the Byrne test that render the test unworkable and unfair. Finally, this Comment proposes a modified constructive notice standard.

1. CONSTRUCTIVE NOTICE UNDER THE FAMILY AND MEDICAL LEAVE ACT

   The FMLA guarantees covered employees up to twelve weeks of unpaid leave from work in any twelve-month period to care for a family member or for the employee's own serious health condition. (12) Though most commentators focus on the FMLA's caretaker provisions or its treatment of pregnancy as a serious health condition, (13) most employees who take FMLA leave use it to address their own serious health conditions other than pregnancy. (14)

   The FMLA requires employees to give their employers fair notice that they need leave. (15) An employee must give notice thirty days in advance of the absence if the need for FMLA leave is foreseeable, (16) or "as soon as practicable under the facts and circumstances of the particular case" if it is unforeseeable. (17) Many employees who otherwise qualify for leave fail to fulfill the notice requirement and are barred from bringing claims. (18)

   Some of these employees should have the benefit of constructive notice. Courts have recognized constructive notice in other areas of employment law, (19) and there is a particularly strong reason to recognize constructive notice in the FMLA context. The FMLA entitles employees with serious mental health conditions to leave on the same terms as those with physical ailments, (20) and there are many such employees in the United States. (21) In fact, the FMLA has become an important protection for the significant number of workers with mental or emotional disorders who are unable to obtain reasonable accommodations under the ADA. (22) Some of the conditions that would entitle an employee to FMLA leave, however, produce symptoms that may prevent the employee from providing the actual notice required by the FMLA regulations.(23) As a result, not allowing constructive notice would contradict the FMLA's purpose to broadly protect employees with serious health conditions (24) by depriving many employees of much-needed leave. It would also favor employees who are temporarily or periodically unable to work due to physical ailments over employees with psychological ailments who suffer the same degree of limitation. If constructive notice were available to employees who could not satisfy actual notice requirements, more workers would receive the medical help they need to remain productive members of the workforce in the long term.

2. THREE SHORTCOMINGS OF THE BYRNE TEST

   The Byrne constructive notice test has two prongs. If either is satisfied, the court permits the employee's claim to proceed. The "behavioral" prong inquires whether the employee exhibited a "dramatic change in behavior" that was "enough to notify a reasonable employer that [the employee] suffered from a serious health condition." (25) The behavior change may constitute notice "even if the employee is lucid: someone who breaks an arm obviously requires leave." (26) The "infeasibility" prong inquires whether the employee is "powerless to communicate his condition effectively" or "mentally unable either to work or give notice." (27) If the behavioral prong is satisfied, the employee has given constructive notice of his or her need for FMLA leave; if the infeasibility prong is satisfied, the notice requirement is waived.

   This test has three shortcomings. First, the Byrne court's use of examples of physical ailments to explain its application of the test to mental disorders makes the test unworkable. Second, the test does not anticipate scenarios in which an employee exhibits inconsistent behavior. Finally, the test provides no...