Legal Updates


September 26, 2018

Employers covered by Federal Family and Medical Leave Act (“FMLA”) requirements are required to provide access to protected time off in qualifying circumstances.  Employees eligible for leave are required to provide adequate notice to their employers of the need for leave.  29 C.F.R. § 825.303.  This notice requirement is straight-forward when an employee completes an advanced written request for FMLA leave, including adequate information to evaluate and provide required leave.  Unfortunately, this type of notice is not always provided.  In some cases, the law recognizes that an employer must identify and extend leave to an employee who has not explicitly requested leave, but whose conduct illustrates the need for leave.

Constructive Notice of Need for Leave

The Seventh Circuit federal court of appeals has previously recognized that, in some cases, an employee’s behavior may represent a “clear abnormalit[y]” illustrating the presence of a medical condition requiring time off.  Stevenson v. Hyre Elec. Co., 505 F.3d 720 (7th Cir. 2007).  In Hyre Electric, the employee exhibited extremely irrational behavior when a stray dog entered the warehouse facility where she worked.  She became aggressive and threatening towards her coworkers and ultimately her boss.

The Court found in Hyre Electric that, although her behavior was objectively of the nature that justified termination, because it was such a significant departure from her typical demeanor the employer should have known that something was not quite right.  The employer in Hyre Electric, therefore, was on notice of the employee’s likely need for leave.  This constructive notice triggered the obligation to extend to her the opportunity for protected FMLA leave.  

The constructive notice reasoning in Hyre Electric has been the source of some consternation among employers.  It is difficult, and contrary to conventional wisdom, for an employer to assume an employee is experiencing health problems based on his or her behavior.  The Seventh Circuit, in a line of cases, beginning with Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003) and including Hyre Electric has; however, placed employers in that uncomfortable position.  These cases largely involve an employee’s mental health concerns that, primarily in hindsight, explained the employee’s behavior.  However, the concept is not limited to mental health concerns.

Constructive Notice in Guzman

Earlier this year, the Seventh Circuit discussed its constructive notice jurisprudence in Guzman v. Brown County, 884 F.3d 633 (7th Cir. 2018).  The Court noted that its prior decisions in Byrne and subsequent cases had been criticized by other Courts, but it declined to revisit the analyses.  Instead, it focused on the facts in the Guzman case, and was able to conclude that the facts did not meet the constructive notice standard in Byrne or Hyre Electric.  Employers should not read into this case the notion that constructive notice is no longer a concern.

In Guzman the employee, a 911 Dispatcher, suffered from sleep apnea.  The Court noted that Guzman acknowledged that she had “thrown away her CPAP machine” and was not seeing a medical professional for her sleep apnea, which produced questions as to whether she could establish the presence of a serious health condition, but the Court also analyzed Guzman’s claim that Brown County was on notice of her need for leave.  The record did not include evidence that she had actually told the County of her medical condition, let alone her need for leave, or that the decisionmakers were aware of her medical situation.  Guzman therefore relied on the Court’s constructive notice jurisprudence for her claims in this regard.

Guzman had missed or been late to work on multiple occasions over an 18-month period of time.  She had been disciplined for her tardiness, including a three-day suspension in February, before she was ultimately terminated in March of the same year.  She argued that she had requested FMLA leave and alternatively that Brown County had constructive notice of her need for leave.

As to Guzman’s request for leave, she argued that, at the meeting at which she was informed of her termination from employment, she had first presented a note from a psychiatrist stating that she “most probably” had recurrent sleep apnea.  This note and the accompanying request for time off occurred; however, after the decision to terminate had already been made.  Of significance in this decision on this issue is that the Court did not consider Guzman’s argument that she had requested leave, because Guzman failed to raise this argument prior to her appellate brief.  Employers are therefore cautioned not to read too much into the part of the decision noting that her request for leave was given after the termination decision was made, but prior to when it was communicated.

As to constructive notice, the Court reviewed her record and concluded that six incidents of tardiness over 18 months was not the type of “stark and abrupt change” to one’s performance that raises the possibility of constructive notice.  Likewise, the Court pointed out that she provided non-medical excuses for some of those absences (car troubles, cellphone alarm clock malfunction).  Finally, the Court noted that Guzman had been disciplined for tardiness the month prior to her termination and, at that time, made no reference to sleep apnea or any request for FMLA leave.

The Court dismissed her FMLA claims, as well as a host of other claims against the County.

What to Take from this Decision

As to the application of the concept of “constructive notice” of an employee’s need for leave, Guzman, appears, while noting the criticism of the Court’s previous constructive notice decisions, to affirm their application.  The facts are ultimately what drove the Guzman decision, not a move away from constructive notice concepts.  In that sense, this case serves to drive home principles of best practices for employers.  First, pay attention to employee conduct and performance and be aware of sudden and abrupt changes.  In this case, Guzman’s conduct resulting in her termination was in fact a consistent pattern over a relatively extended period of time.  Second, note the information provided by the employee when confronted with performance concerns.  In this case, Guzman had given excuses for her tardiness which were not medically related in any way.  She later sought to retract those explanations, but employers are permitted to take the employee’s representation into account when evaluating their performance deficiencies.

In addition, an employee’s history of FMLA use is pertinent to evaluating whether that employee’s behavior places the employer on constructive notice of the need for leave.  Notice of the need for leave for a first-time FMLA user, according to federal regulations, need not include actual reference to FMLA, but need only be notice sufficient to illustrate that the employee is unable to perform the functions of his or her job.  29 C.F.R. § 825.303(b).

Documenting circumstances of recurring performance concerns, such as frequent tardiness, is also critical, as is providing employees the opportunity to provide information concerning those absences.  If the explanations implicate medical concerns, particularly mental health concerns, employers are still well advised to consider extending FMLA leave to employees.  Even if an employee is unable to later establish that the employer should have known of a need for leave, the employer’s vindication may come after 6 years of federal litigation – Guzman was terminated in March 2012, and this case was decided in March 2018.  It is therefore still prudent to approach these situations deliberately and by giving due consideration for various state and federal employee protections.

For questions regarding this article, please contact the author, Attorney Geoffrey A. Lacy (email:; telephone: 844.833.0824), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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