The following article was first published on Littler’s FMLA Insights blog. It is reposted here with permission.
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Now that you’re here, let me tell you the story of Antonio Brown, soon-to-be former football player for the Tampa Bay Buccaneers. This past Sunday, Brown engaged in a verbal spat on the sidelines with the Bucs' head coach, Bruce Arians, over whether he should play in the game.
Brown twice refused to go into the game. When he refused the second time, the coach reportedly told him to “get out.”
In a bizarre next couple of minutes, Brown proceeded to rip off his shoulder pads and jersey, tossing them on the bench as he made a beeline for the locker room. On his way, he removed his undershirt and gloves, throwing them into the crowd, then streaked half naked through the end zone and into the locker room.
Click here for Brown’s complete rant.
After the game, Coach Arians informed the media that Brown “was no longer a Buc.”
Can the Bucs Lawfully Terminate Brown?
In a world where these kinds of strange outbursts are increasingly common, did the Bucs have the right to terminate Brown’s employment with the club? Or could we look at this a different way—was Brown’s erratic behavior a cry for help?
Was this, in fact, a “cry” for FMLA leave?
For the overwhelming majority of you who are yelling at me, “Oh, gawd, no, Jeff,” I hear you. If you follow football in the NFL, you know that Brown has engaged in erratic and mind-boggling behavior for several years, so this latest outburst arguably doesn’t implicate the FMLA.
Of course, the Bucs have a very good argument that Brown was insubordinate and then walked off the job, two fatal errors for any employee.
But wait one minute. At times like these, I am reminded of another case we’ve covered before on this little FMLA blog—the case of Noemi, who worked for a school district in suburban Chicago.
During six years of work, Noemi received excellent performance evaluations (kind of like Brown did when he formerly played for the Pittsburgh Steelers?).
Shortly thereafter, Noemi’s mental state began to deteriorate—she experienced insomnia, uncontrollable crying, an inability to concentrate and exhaustion.
On several occasions, she arrived late to work and left early because she could not control her crying. Noemi then abruptly resigned, walking off her own football field, but later asked to rescind her resignation, a request her supervisor declined.
As the story goes, Noemi filed an FMLA lawsuit, arguing that her behavior put her employer on “indirect” notice of the seriousness of her health condition based on observable changes in her behavior and conduct.
The court agreed, and Noemi later prevailed on her FMLA claim at trial.
Might Noemi’s story give the Tampa Bay Bucs pause?
Maybe not, but what if I added one more fact: prior to the game, Brown apparently obtained medical documentation from an independent surgeon confirming that he was dealing with a great deal of pain in his ankle.
This medical finding conflicted with the Bucs’ physicians, who earlier cleared Brown to play.
Insights for Employers
There’s plenty to unpack here. Let’s put the conflicting medical notes aside for the moment, as I will cover this at the end of my post, and let’s deal first with Brown’s behavior.
I am far more comfortable with a termination decision where we can show that we have addressed the employee’s increasingly erratic behavior before and offered assistance before hitting the termination button.
Why? Where there are clear abnormalities in an employee’s behavior, it is critical that the employer explore whether it can provide further assistance to the employee–including assessing the need for medical leave and/or an accommodation—before termination.
If the employee refuses this assistance after notice and fair warning (kinda like Brown did), then and only then do we look for the termination button.
So, a couple of things to keep in mind:
- FMLA Notice Doesn’t Always Come in Words.
There are an increasing number of cases in which courts have found that changes in employees’ behavior might suggest that the employee is suffering from a serious health condition, and that the employer is obligated to treat the behavior as a request for FMLA leave.
Noemi’s case above is a reminder that an employee is not required to use the letters F-M-L-A to request leave, and it underscores that the courts often expect an employer to give the employee the benefit of the doubt when it comes to a potential leave of absence under the FMLA.
As a result, it is critical that employers identify all situations in which the employee may be suffering from a medical condition and proactively engage the employee in a discussion about what we can do to help.
- Let Empathy Be Your Guide.
Where there are clear abnormalities in the employee’s behavior, it is critical that the employer explore whether it can provide assistance to the employee before hitting the termination button.
When you communicate with an employee, use words that show that you’re on the same side as the employee. If leave is the only option, it’s far better to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy.
As a David Fram disciple, I advise my clients that they are best served by first asking, “How can I help you?” These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need. If they refuse this assistance after notice and fair warning, then and only then do we consider more drastic options.
Based on widespread reports, the Bucs did just this—despite Brown’s worrisome behavior in the past, the Bucs offered him help, so his latest outburst can’t really be used as a shield to ward off termination.
But what about those conflicting doctor’s notes?
It’s been reported that the spat between Brown and Arians was due to Brown’s insistence that he was in too much pain to play, and that he had his own doctor’s note to back him up.
When faced with conflicting medical opinions, an employer generally has one of two options: 1) be darn sure that the medical information it’s relying on is objectively reliable, and the other medical opinion is not; or 2) obtain an additional medical option to act as a “tie-breaker.”
The latter is time consuming and will cost money, of course, but it’s effectively a get out of jail free card in the event you need to defend the decision with the EEOC or in court.
Meanwhile, Brown took advantage of all the free publicity by releasing a rap song right after his altercation. Seriously, you can’t make this stuff up. If you’re interested, you can listen to the song here.
About the author: Jeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing employers. He has two decades of experience advising and litigating on behalf of employers on a wide range of complex employment law matters and is a recognized leader on FMLA and ADA issues, helping employers develop comprehensive strategies to achieve compliance with employee leave and accommodation issues.