Finds Lay Testimony May Be Used To Establish A “Serious Health Condition”

A federal appellate court recently reinstated a lawsuit brought by a worker who accused her employer of violating the Family and Medical Leave Act (FMLA) by firing her based on a medical condition. According to the Third Circuit Court of Appeals, the employee’s own testimony regarding a period of incapacity may, in conjunction with medical evidence of her illness, create an issue of fact sufficient to have a jury decide the issue of whether she suffered from a “serious health condition” under the FMLA. Schaar v. Lehigh Valley Health Services, Inc., No. 09-1635, Third Circuit Court of Appeals (March 11, 2010).

Factual Background

Rachael Schaar worked as a medical receptionist for the Lehigh Valley Physicians Business Services, Inc. in Bethlehem, Pennsylvania. On Wednesday, September 21, 2005, Schaar was diagnosed by one of Lehigh Valley’s physicians with a urinary tract infection, fever, and lower back pain. The physician prescribed an antibiotic and an anti-inflammatory. He also wrote a note advising Schaar’s supervisor, office manager Patricia Chromczak, that Schaar’s illness would prevent her from working on September 21 and 22. Schaar taped the note to her supervisor’s door and went home.

Consistent with that note, Schaar took September 21 and 22 as paid sick days. She previously had scheduled vacation days for Friday, September 23, and Monday, September 26. Schaar claimed that she stayed in bed until Saturday, but was ill until Monday.

When she returned to work on Tuesday, September 27, Schaar told Chromczak that she had been sick all weekend. However, she did not request FMLA leave for her absence, nor did she ask to have her vacation days converted to sick days. Schaar claims that Chromczak told her that she could be fired for failing to call off on her two sick days. After checking with human resources, Chromczak subsequently told Schaar that the decision to leave a note in lieu of calling off was not a terminable offense.

Six days later, however, Schaar was discharged. In a written explanation, Chromczak stated that one of the reasons for the termination was “never calling off from work,” along with several mistakes and performance issues.

Schaar sued Lehigh Valley claiming discrimination and interference with her FMLA rights. The company argued that Schaar did not qualify for medical leave because she did not prove that she was “incapacitated” for three days and because she failed to give proper notice that she may qualify for leave.

The trial judge dismissed the case, finding that because Schaar had not presented expert medical testimony establishing three days of incapacity, she had failed to prove that she suffered from a “serious health condition.” Schaar appealed this decision to the Third Circuit Court of Appeals.

Legal Analysis

The “crucial question,” the Third Circuit found, was whether Schaar was entitled to take FMLA leave. The FMLA entitles an eligible employee to 12 weeks of leave, but only if the employee can show that he or she suffers from a “serious health condition.” The Act defines a serious health condition as an illness or other condition that involves “continuing treatment by a health care provider.” The regulations interpreting the FMLA require a showing of at least three days of incapacitation plus treatment by a health care provider to establish a serious health condition.

On appeal, the Third Circuit addressed whether Schaar presented evidence that she was incapacitated for more than three days, and whether she had to establish that incapacitation through medical evidence. Courts have answered those questions in three ways, holding: (1) that the supporting evidence used to establish incapacity has to come exclusively through a medical provider; (2) that lay testimony, standing alone, is sufficient to establish incapacity; and (3) that lay testimony can be used to supplement a medical professional’s testimony or evidence regarding incapacity.

In spite of the fact that district courts within the Third Circuit previously adopted the first approach, the Third Circuit established, through this decision, that lay testimony can create an issue of fact regarding a three-day incapacitation, so long as medical evidence has been proffered to establish the underlying medical condition.

The court observed that while the FMLA regulations do not speak specifically to whether medical testimony is required, a related regulation requires the testimony of a health care provider to determine when an employee is “unable to perform the functions of the position,” thereby making medical evidence a necessary element of an employee’s case. However, because there is no language in the regulations to exclude all lay testimony regarding the length of any incapacitation, the Third Circuit refused to categorically exclude such evidence. As a result, the court reinstated Schaar’s FMLA suit.

Practical Impact

According to Maria Greco Danaher, a shareholder in Ogletree Deakins’ Pittsburgh office: “While the court rejected the approach taken by the Fifth and Ninth Circuits (which each have held that lay testimony alone is sufficient to create a genuine issue of material fact regarding whether a `serious health condition’ existed), it has determined that such evidence can be sufficient if it is offered in combination with medical evidence linking incapacitation to the subject health con-dition. Given the FMLA’s administrative complexities, employers should review requests on a case-by-case basis, including a review of both medical and lay information, before rejecting a claim for FMLA leave.”

Note: This article was published in the March/April 2010 issue of the Employment Law Authority.

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