Friday, January 17, 2014

Coworkers reporting “strange” behavior, employee seeking time off for “stress” may show employer knew of need for FMLA leave

This is from Lorene D. Park, J.D. at Employment Law Daily

Evidence that coworkers reported that an employee was engaging in “strange behavior,” that his supervisor knew he had previously been diagnosed as bipolar and was on anti-depressants, that he reported feeling stressed and needing counseling a few weeks before he was fired for two unauthorized absences, and that he said he needed those days off due to “stress,” raised an issue of fact on whether the employer had notice of his intent to take FMLA-qualifying leave, determined a federal district court in South Carolina, rejecting a magistrate judge’s recommendation otherwise and denying summary judgment on the employee’s FMLA interference claim. However, the employee failed to show that he was substantially limited in a major life activity so his ADA claims failed as a matter of law (Koszarsky v AO Smith Corp, January 9, 2014, Harwell, R). ...

Notice of need for leave. Furthermore, there was a question on whether he provided adequate notice of his intent to take leave, though the court found this to be a “very close call.” Taken “in a vacuum,” the employee’s repeated requests for April 6 and 7 off, followed by his stating, as an explanation, “stress, need to unwind,” could appear to simply be an attempt on his part to get around the supervisor’s prior denials of his requests, rather than notice of intent to take FMLA leave. However, the record taken as a whole could indicate otherwise.

The employee told his supervisor a few weeks before his April 6 email that he was feeling stressed and wanted counseling. He also noted he had been diagnosed as bipolar and was on anti-depressant medication. Moreover, several coworkers stated that he was exhibiting “strange behavior” before his April 6 absence and one sent an email on April 5 stating that he was acting strange and had been disruptive and unfocused. Further, when the employee made his final request for April 6 and 7 off, he noted it was for “stress” and a “need to unwind” and in the phone call where he was terminated, his wife got on the line and explained he had an anxiety attack on April 6. That was enough to raise a genuine factual dispute as to whether the employer had notice of his intent to take FMLA leave and interfered with his FMLA rights.

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