The Seventh Circuit Court of Appeals recently reiterated that an employee's sudden behavioral change and unusual behavior may constitute "constructive notice" to the employer that the employee needs a Family Medical Leave Act ("FMLA")-covered mental health leave. The court's decision in Stevenson v. Hyre Electric Co. should serve as a reminder to employers that an employee may be deemed to have given notice of a serious health condition based solely on behavior the employer has observed, even if she has not provided the FMLA-documentation normally required by the company.

In general, an employee is required to provide notice to employers that she is suffering from a serious health condition in order to become entitled to leave under the FMLA. The notice need not be formal, but it must succeed in alerting the employer to the seriousness of the health condition. Such informal notice is termed "constructive notice."

In Stevenson, the court found that the employee had not provided actual notice of her serious health condition. As such, the question became whether the sudden change from a satisfactory employee to one displaying erratic and emotional behavior could constitute constructive notice to the employer, Hyre, that the employee was suffering from a serious mental health condition and was in need of FMLA leave. Stevenson's behavior (which began after a stray dog came into the work area through an open window) included yelling, cursing and screaming at coworkers, managers and the company's president, a seemingly baseless complaint to the police that she was being harassed, and complaints that she was not feeling well and was unable to work. Hyre was concerned enough about Stevenson's behavior that it changed the locks.

Citing its prior decision in Byrne v. Avon Products, the Seventh Circuit reiterated that constructive knowledge may be based on unusual behavior alone. It was not necessary for Stevenson to present evidence that she was unable to communicate her illness to her employer. Rather, Stevenson could survive the company's motion for summary judgment because she had presented sufficient evidence that her abnormal behavior provided constructive notice of her serious mental health condition and need for leave.

While the Stevenson decision turned largely on the particular facts at issue, it should serve as a reminder to employers that an employee's failure to provide actual notice of her serious health condition does not necessarily mean that she is not protected by the FMLA.