Sudden Behavior Change May Qualify As FMLA Notice

Contributing Editor, Best Practices in HR

Key Issue: Sudden or dramatic behavior changes could suggest a health condition serious enough to trigger FMLA protection.

The Case: Byrne v. Avon Products, Inc., 7th Circuit, No. 02-2629 (May 2003)

John Byrne was a stationary engineer on the night shift at Avon Products. Suddenly, after over four years of highly regarded service, he began reading and sleeping on the job. After a co-worker reported finding Byrne asleep in the carpenter's shop one night, the company checked the security logs and noted that he had begun frequenting the shop area. They were able to determine his access to the area, because even though employees were permitted to use it as a "break room," they needed a coded card to enter. To further investigate the situation, the company installed a camera in the room.

On the first night the camera was operating, Byrne spent about three hours in the shop reading or sleeping. On his next shift, he was there about six hours, most of the time spent sleeping. Managers intended to discuss the issue with Byrne on his next scheduled shift. However, he left before his shift ended and told a co-worker that he wasn't feeling well and would be out the rest of the week.

The company tried calling Byrne at home. A sister answered and said that he was "very sick." A facilities engineer was finally able to reach Byrne, who mumbled a few odd phrases and agreed to attend a meeting the next day to discuss the issue. He didn't show and was fired for missing the meeting and sleeping on the job. Meanwhile, Byrne's uncharacteristic behavior continued. After he attempted suicide, relatives took him to the hospital, where a psychiatrist concluded that he was severely depressed and had begun to hallucinate.

After two months of treatment, Byrne had recovered enough to be able to return to work, but the company would not reinstate him, so he filed suit under the ADA and the FMLA.

The district court found in favor of the company, ruling that neither statute excuses an employee's misconduct and that Byrne's behavior (i.e., sleeping on the job and taking extended breaks) constituted work rule violations.

The 7th Circuit Court of Appeals upheld the district court's decision with regard to the ADA. Byrne argued that he should have been accommodated by being allowed not to work. The court disagreed, pointing out that ADA accommodation is required only when a person can "perform the essential functions of the employment position."

With respect to Byrne's FMLA claim, an employer's knowledge of a serious health condition is sufficient to trigger FMLA applicability. The circuit court found that Byrne might have been entitled to leave on the basis of his severe depression, noting that because he had been an excellent employee in the past, his sudden behavior change could have been sufficient notice to the employer that something was medically wrong. The employee is not required to mention the statute or request its benefits. The case was sent back for trial.

Compliance quote. The real issue in this case is whether the company's decision to terminate Byrne and its subsequent refusal to reinstate him were justified under either statute.

The facts here illustrate that for a period of time, Byrne suffered a debilitating condition. However, he couldn't be considered a qualified individual under the ADA because he couldn't perform the basic elements of his job function. So his ADA claim failed.

Yet the 7th Circuit ruled that the company should have recognized Byrne's potential protection under the FMLA, saying: "It is not beyond the bounds of reasonableness to treat a dramatic change in behavior as notice of a medical problem. Byrne not only was unable to regulate his sleep cycles, but also had become suspicious of other people and was powerless to communicate his condition effectively. A person unable to give notice [under the FMLA] is excused from doing so." The court concluded that the company failed to recognize Byrne's situation as a serious health condition rather than "goldbricking," and that he should be entitled to reinstatement.

This case illustrates why employers need to be aware of the compliance standards related to various employment laws. Even if an individual in circumstances similar to those of Burns doesn't qualify for protection under the ADA, such dramatic behavioral changes could indicate a condition serious enough to trigger the FMLA.