Suits In The WorkPlace

Should I stay or should I go?: The FMLA notice battle just got a lot tougher

     The Family and Medical Leave Act is rapidly morphing into a statute that sets impossible standards for employers.  Witness a recent case out of the Northern District of Illinois, Lozano v. Kay Mfg. Co., No. 04 C 2784, March 28, 2006.

     Lozano worked for Kay for about three years before he was fired.  After his first year on the job, his performance deteriorated and he was placed formally on probation for six months, ending in January 2002.  His performance evaluation indicated he was performing "below expectations."  Lozano went to the hospital twice in January and February of 2002 and was diagnosed with a series of ailments including major depression, panic attacks and delirium tremens.  He missed a substantial amount of work that the employer covered with its short-term disability leave, noting that Lozano had a variety of psychiatric and physical health problems.

     When Lozano returned to work, he continued to have performance problems.  He was discharged following several more miscues.  During his termination meeting, he walked out of the room and retreated to the employee locker room where he curled up in a fetal position.  Unsurprisingly, he was then admitted to a psychiatric ward for treatment but when he was released, he sued Kay under the FMLA and claimed the company violated his rights by not offering him medical leave, instead of terminating him. 

     Kay, not surprisingly, moved for summary judgment and alleged that Lozano had never requested leave or given notice of his need for leave.  Following a recent 7th Circuit case involving psychiatric disability, the judge found that the employee "informed" his employer of his need for FMLA leave by advising the employer that he was undergoing psychiatric care in the months prior to his discharge.  The court noted that there might have been some report by the plaintiff that his mental condition was affecting his work, but Lozano never made a claim for FMLA leave.  The court then made the interesting distinction that, while a sudden change in behavior would provide notice of the need for FMLA leave (notwithstanding the fact that a sudden change of behavior could be the result of almost anything in addition to a medical condition, e.g., getting drunk, having a drug addition, undergoing marital difficulties, etc.) the gradual changing nature of Lozano’s performance difficulties created an issue of fact as to whether the employer actually had notice of an FMLA-qualifying medical condition. 

     What's an employer to do here?  Involuntarily place the employee on FMLA leave in lieu of termination?  Even when the employee fails to ask for FMLA leave, and insists on going back to work?  This ruling represents another expansion of liability under the FMLA in a case where the employer apparently just followed its normal disciplinary procedures.  What this case (and its predecessor in the 7th Circuit) means is that an employee who has notified an employer of a problematic health condition effectively makes herself unfireable, at least until the employer takes the additional steps of inquiring about her health status even if the employee herself does not link her health issues with performance problems.  That is a dangerous precedent for any employer.