For Crying Out Loud: Employee’s Out-of-Character Tears Place Employer on Constructive Notice of Need For FMLA Leave

By: Attorney Bryan Symes

Okay, so there’s no crying is baseball—that much we know with certainty [thank you, Tom Hanks].   Not the case with workplaces, however.   In fact, recently, a federal court sitting in Illinois addressed whether a former employee—who “began crying regularly and uncontrollably at work”—placed her former employer on notice of a need for FMLA leave.  The case is Valdivia v. Township High School, District 214, available here.   In Valdivia, the former employee alleged that her employer interfered with her rights under the FMLA by failing to provide her with notice that she had a right to take job-protected leave under the FMLA, even though her former employer allegedly knew or should have known that she suffered from a medical condition that made performing her job untenable. 

The Court noted that the FMLA notice requirement “is not demanding: The employee’s duty is merely to place the employer on notice of a probable basis for FMLA leave.”  The Court also concluded, “…direct notice may not be possible if the plaintiff herself was unaware that she was suffering from a serious medical condition.”   This preceded a more significant conclusion—that “the notice requirement may be met indirectly; clear abnormalities in the employee’s behavior may constitute constructive notice of a serious health condition…and obviate the need for an express request for medical leave.”   

No sense crying over spilled milk.  Instead, the Valdivia decision exists as a reminder for the business community to be more vigilant when it comes to the administration of FMLA leave.   No “magic words” are required to place an employer on notice of need for job-protected leave under the FMLA.  Instead, even uncharacteristic employee behavior—like crying—may constructively place an employer on notice that leave may be appropriate.  This places employers in an unenviable situation—tender FMLA paperwork and satisfy your FMLA obligations, but potentially give rise to a “regarded as” claim under the ADA.  For this reason, employers facing the onset of uncharacteristic, abnormal employee behavior should be very attentive and should consult with experienced legal counsel—anything less is a crying shame. 

This article should not be construed as legal advice applicable to your specific situation and is intended for general information purposes only. If you have any questions regarding this article, you should consult your legal counsel.