Constructive Notice Under FMLA

Family, Medical Leave Act: Constructive Notice for Leave is an interesting March 26, 2008 New York Law Journal article by Dean L. Sliverberg and Melissa Beekman. This article discusses the Oct. 7, 2998 Seventh Circuit decision in Stevenson v. Hyre Electric Co., which held that although an employee may not have given direct notice for leave under the Family and Medical Leave Act (FMLA), she may have provided constructive notice of her need for FMLA by her unusual workplace behavior, apparently precipitated by a stray dog in the office. The authors conclude:

This decision will probably have large implications for employers by forcing them to seriously scrutinize the circumstances surrounding an employee's absence when considering whether the FMLA, along with its attendant rights and obligations, are triggered.

It is hard to argue with the rational of the court. The FMLA notice requirements are not complex. No magic words are needed. When an otherwise good employee transforms virtually over night and has bizzare behaviors at work, it might be obivious that something is wrong and the employee is in need of leave. On the other hand, are employers expected to have a crystal ball where they can read into the employee's medical or personal problems?    

This is a case of first impression that appears ripe for law review commentary.

Mitchell H. Rubinstein