                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 02-2629
JOHN BYRNE,
                                            Plaintiff-Appellant,
                               v.

AVON PRODUCTS, INC.,
                                            Defendant-Appellee.

                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
           No. 00 C 5378—Milton I. Shadur, Judge.
                         ____________
      ARGUED APRIL 14, 2003—DECIDED MAY 9, 2003
                    ____________


 Before CUDAHY, POSNER, and EASTERBROOK, Circuit
Judges.
  EASTERBROOK, Circuit Judge. 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 co-worker reported 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 to 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
2                                             No. 02-2629

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
(November 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 that
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 appear, he was
fired for that omission plus sleeping on the job. Byrne was
in no shape for a conference, however, as he was suffer-
ing from depression. Relatives took him to the hospital
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 treat-
ment 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. 2002 U.S. Dist. LEXIS
9252 (N.D. Ill. May 22, 2002).
  The ADA forbids employers to discriminate against any
“qualified individual with a disability because of the dis-
ability.” 42 U.S.C. §12112(a). “Qualified individual with
a disability” is a defined term: “an individual with a dis-
ability who, with or without reasonable accommodation, can
perform the essential functions of the employment posi-
tion that such individual holds or desires.” 42 U.S.C.
§12111(8). From November 1998 through mid-January
1999 Byrne could not stay awake (sleep disturbance is
No. 02-2629                                               3

a common symptom of depression’s onset) and had be-
come too suspicious of his co-workers to tolerate them. As
a result he was incapable of working. Byrne acknowledges
this but contends that he should have been accommodated
by being allowed not to work. That is not what the ADA
says. The sort of accommodation 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 intermittent
conditions. Someone with arthritis or lupus may be able
to do a given job even if, for brief periods, the inflamma-
tion is so painful that the person must stay home. See
Haschmann v. Time Warner Entertainment Co., 151 F.3d
591 (7th Cir. 1998). Cf. Pals v. Schepel Buick & GMC Truck,
Inc., 220 F.3d 495, 498 (7th Cir. 2000) (part-time work
may accommodate a person recovering from a med-
ical problem). But Byrne did not want a few days off or
a part-time position; his only proposed accommodation is
not working for an extended time, which as far as the
ADA is concerned confesses that he was not a “qualified
individual” in late 1998. “The rather common-sense idea
is that if one is not able to be at work, one cannot be a
qualified individual.” Waggoner v. Olin Corp., 169 F.3d 481,
482 (7th Cir. 1999). Spotty attendance by itself may
show lack of qualification. See EEOC v. Yellow Freight
System, Inc., 253 F.3d 943 (7th Cir. 2001) (en banc).
Inability to work for a multi-month period removes a
person from the class protected by the ADA.
  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 se-
4                                              No. 02-2629

rious, 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 that 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., 272 F.3d 1006 (7th Cir. 2001)
(employee’s claim to be “sick” is not enough). But the
district judge thought that notice on November 17 came
too late. For the preceding ten days or so, Byrne had
been sleeping on the job, which justified his discharge.
(The district judge added, and we agree, that the record
would not permit a reasonable trier of fact to conclude
that Avon discharged Byrne because of, rather than in
spite of, the information about Byrne’s mental health
that it received on November 17 and 18.)
  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., 233
F.3d 969 (7th Cir. 2000). It is not beyond the bounds of
reasonableness to treat a dramatic change in behavior
as notice of a medical problem. That’s clear enough if a
worker collapses: an employer might suspect a stroke, or
a heart attack, or insulin deficiency, or some other serious
condition. It would be silly to require the unconscious
worker to inform the employer verbally or in writing.
Unusual behavior gives all the notice required, and no
employer would be allowed to say “I fired this stricken
person for shirking on company time, and by the time
a physician arrived and told me why the worker was
unconscious it was too late to claim FMLA leave.” A sudden
change may supply notice even if the employee is lucid:
No. 02-2629                                               5

someone who breaks an arm obviously requires leave. It
is enough under the FMLA if the employer knows of the
employee’s need for leave; the employee need not mention
the statute or demand its benefits. See, e.g., Price v. Ft.
Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997).
  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 leave 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 permit (though not com-
pel) 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 people 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 foreseeable, an employee should give
   notice to the employer of the need for FMLA leave as
   soon as practicable under the facts and circum-
   stances of the particular case. It is expected that
   an employee will give notice to the employer with-
   in no more than one or two working days of learn-
   ing of the need for leave, except 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 condi-
   tion 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
6                                               No. 02-2629

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 med-
ical 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 entitle 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 Byrne 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
leave under this act is unpaid except to the extent that
an employee has accrued medical or vacation leave avail-
able. 29 U.S.C. §2612(c), (d). A judge would be entitled,
under circumstances such as these, to require the em-
ployee to agree, as a condition of pursuing relief under
the FMLA, that unproductive time preceding the discharge
be reclassified as unpaid leave (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 ad-
justments along these lines may be appropriate. That
subject should be handled promptly on remand.
                                  VACATED AND REMANDED
No. 02-2629                                         7

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—5-9-03
