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It is well settled that people with mental illnesses have faced difficult hurdles in sustaining employment discrimination claims under the Americans With Disabilities Act of 1990 [ADA]. Yet, a recent case rendered by the U.S. Court of Appeals for the Seventh Circuit, Byrne v. Avon Products, Inc., 328 F.3d 379, indicates that the Family and Medical Leave Act [FMLA] may lend greater assistance to those who develop a mental illness while employed by an entity covered under that statute.

The FMLA provides, in relevant part, that an eligible employee of entities covered under the statute has the right to take unpaid medical leave for a period of up to 12 work weeks during any 12-month period if he or she has a "serious health condition that makes the employee unable to perform the functions of the position of such employee." The definition of "serious health condition" includes a "mental condition that involves in-patient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider."

Although an employee should provide formal notice to the employer of the need to take FMLA leave, even if an employee does not invoke the FMLA by name, under the statute "the employer's duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave." Once the employer is on notice, if it is not satisfied with the employee's explanation, it has the duty to inquire further and to "obtain the necessary details of the leave to be taken."

The Byrne case involved the common situation in which an employee develops a mental illness which interferes with his ability to do his job.

Although Byrne's service as a stationary engineer during his first four years at Avon was "highly regarded," in his fifth year, Byrne began to read and sleep on the job for several hours at a time. When management attempted to discuss the matter with Byrne, he left early, telling a co-worker he was not feeling well and would be out for the rest of the week.

Management attempted to call Byrne at home, but the calls were answered by his sister, who said he was "very sick." Finally, someone from Avon was able to speak with Byrne, who mumbled several odd phrases but agreed to attend a scheduled meeting. He did not appear for the meeting, however, so Avon discharged him for that lapse as well as for sleeping on the job.

Meanwhile, during the last few days before he was terminated, Byrne had begun to hallucinate, barricaded himself within his home and attempted suicide. Yet, during the next two months, he obtained the necessary treatment and subsequently sought to return to his job. When Avon would not take him back, Byrne commenced an action alleging employment discrimination in violation of the ADA and the FMLA.

The U.S. Court of Appeals for the Seventh Circuit found Byrne's ADA claim unavailing on the ground that permission to refrain from working for an extended time did not constitute a "reasonable accommodation," reasoning that "[a]n inability to do the job's essential tasks means that one is not 'qualified'" (id, 381-82 [quoting from the ADA]).

With respect to Byrne's FMLA claim, however, the court determined that there existed an issue of triable fact as to: (a) whether Byrne's change in behavior was sufficient to notify a reasonable employer that he suffered from a serious health condition, or (b) whether Byrne was mentally unable either to work or to give notice of his need for leave under the FMLA. The court explained that instead of finding, as the district court had, that notice that Byrne was "very sick" came too late in that he had already exhibited signs of malingering, perhaps his unusual behavior comprised the requisite notice that something had gone medically wrong. In making this point, the court noted that "[i]t would be silly to require the unconscious worker to inform the employer verbally or in writing" (id, 381). The court further reasoned that a sudden change may supply notice even if the employee is lucid; "[i]t is enough under the FMLA if the employer knows of the employee's need for leave" (id, 381-82).

Since the case law certainly indicates that sustained erratic behavior is the vocational demise for many, Byrne signals that the FMLA could conceivably assist those with mental illness in securing their positions following proper treatment, where the ADA does not.