After more than four years of highly regarded service as the only stationary engineer on the night shift at Avon Products, John Byrne started to read and sleep on the job. Early in November 1998 a coworker reрorted finding Byrne asleep in the carpenter’s shop, which night employees sometimes use as a break room. Avon checked security logs (employees need a coded card tо enter the carpenter’s shop) and learned that Byrne had begun to frequent it. To investigate further, Avon installed a camera, which on its first night of operation revealed that Byrne spent about three hours of his shift reading or sleeping. The following shift Byrne lingered about six hours in the carpenter’s shop, most of that time asleep with the lights off. Managers tried to discuss matters with Byrne on his next scheduled shift (Novembеr 16-17) but were unable to do so because he left work early, telling a co-worker that he was not feeling well and would be out the rest of the week. Calls were answered by one of his sisters, who told Avon thаt Byrne was “very sick”. James Sparks, Avon’s facilities engineer, finally reached Byrne, who mumbled several odd phrases but agreed to attend a meeting the afternoon of November 17. When Byrne did not aрpear, he was fired for that omission plus sleeping on the job. Byrne was in no shape for a conference, however, as he was suffering from depression. Relatives took him to the hospitаl after talking him out of a room in which he had barricaded himself. A psychiatrist concluded that by November 16 Byrne had begun to hallucinate; he attempted suicide on November 17 and during another panic attack tried to flush his head down a toilet. But two months of .treatment enabled Byrne to surmount his mental difficulties. When Avon would not take him back, Byrne filed this suit under the Americans with Disabilities Act and the Family and Medical Leave Act. The district court granted summary judgment to Avon, ruling that neither statute excuses misconduct on the job.
The ada forbids employers to discriminate against any “qualified individual with a disability because of the disability.” 42 U.S.C. § 12112(a). “Qualified individual with a disability” is a defined term: “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individuаl holds or desires.” 42 U.S.C. § 12111(8). From November 1998 through mid-January 1999 Byrne could not stay awake (sleep disturbance is a common symptom of depression’s onset) and had become too suspicious of his co-wоrkers to tolerate them. As a result he was incapable of working. Byrne acknowledges this but contends that he should have been accom *381 modated by being allowed not to work. That is not what the ada says. The sort of acсommodation contemplated by the Act is one that will allow the person to “perform the essential functions of the employment position”. Not working is not a means to perform the job’s essential functions. An inability to do the job’s essential tasks means that one is not “qualified”; it does not mean that the employer must excuse the inability.
Time off may be an apt accommodation for intеrmittent conditions. Someone with arthritis or lupus may be able to do a given job even if, for brief periods, the inflammation is so painful that the person must stay home. See
Haschmann v. Time Warner Entertainment Co.,
Although the ada applies only to those who can do the job, the fmla affords those who can’t work as a result of a “serious health condition” up to 12 weeks of leave in a year. 29 U.S.C. § 2612(a)(1)(D). Byrne’s condition was serious, and he was ready to work again before the 12 weeks ran out.
fmla leave depends on the employer’s knowledge of a qualifying condition, and Byrne contends thаt his sister’s statement on November 17 that he was “very sick” plus news of his hospitalization, which reached Avon the next day, provided the necessary information. Contrast
Collins v. NTN-Bower Corp.,
Perhaps, however, Byrne’s unusual behavior (recall that he had been a model employee until November 1998) was
itself
notice that something had gone medically wrong, or perhaps notice was excused — for the statute requires notice only if the need for leave is foreseeable. See 29 U.S.C. § 2612(e);
Gilliam v. United Parcel Service, Inc.,
Byrne’s situation is more complex because he hid in the carpenter’s shop for several days running. This is consistent with onset of a disabling mental condition but also could be no more than malingering. Why, one might ask, did Byrne not notify supervisors and seek time off earlier — or just lеave word with a co-worker and go home, as he did on November 17? That poses a medical question: Was someone in Byrne’s state able to give notice? Medical information in the record would рermit (though not compel) a jury to conclude that by early November 1998 Byrne not only was unable to regulate his sleep cycles but also had become suspicious of other peoplе and was powerless to communicate his condition effectively. A person unable to give notice is excused from doing so.
When the approximate timing of the need for leave is not fоreseeable, an employee should give notice to the employer of the need for fmla leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, excеpt in extraordinary circumstances where such notice is not feasible. In the case of a medical emergency requiring leave because of an employee’s own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer’s internal rules and procedures may not be required when fmla leave is involved.
29 C.F.R. § 825.303(a) (emphasis added). If a person with “major depression” (the psychiatrist’s description of Byrne’s condition) could not have told his employer about the problem and requested leave, then notice was not “feasible” and was unnecessary even if the change in behavior was not enough to alert Avon to a need for medical leave.
If a trier of fact believes either (a) that the change in behavior was enough to notify a reasonable employer that Byrne suffered from a serious health condition, or (b) that Byrne was mentally unable either to work or give notice early in November 1998, then he would be entitled to fmla leave covering the period that Avon treats as misconduct. These are independent possibilities. Either one would entitlе Byrne to reinstatement, see 29 U.S.C. § 2614(a), when the “serious health condition” had abated. Instead of treating Byrne’s final two weeks as goldbricking, Avon should have classified this period as medical leave — if Byrnе indeed was unable to give verbal or written notice, or if the sudden change in his behavior was itself notice of his mental problem. In either event, the fmla would require adjustment of Byrne’s pay status, for leаve under this act is unpaid except to the extent that an employee has accrued medical or vacation leave available. 29 U.S.C. § 2612(c), (d). A judge would be entitled, under circumstances such as these, to require the employee to agree, as a condition of pursuing relief under the fmla, that unproductive time preceding the discharge be reclassified as unpaid leаve (with restitution of wages received) or taken as vacation or medical leave if any is available. Because the district court did not consider the possibility that Byrne’s last two weeks should be reclassified as fmla leave, it did not consider what adjustments along these *383 lines may be appropriate. That subject should be handled promptly on remand.
Vacated and Remanded