Schaar v. Lehigh Valley Health Servs., Inc., 2010 WL 825257 (3d Cir., March 11, 2010) – In a case of first impression in the Third Circuit, the Court of Appeals has held that a combination of expert and lay testimony can be used to establish the three-day period of incapacitation required under the federal Family and Medical Leave Act (FMLA). The plaintiff was terminated after missing four days of work. She provided a physician’s note excusing her for two days, but relied on her own testimony that she was not well enough to return to work for another two days, and thus remained out.

The Court of Appeals held that an employee can satisfy his or her burden of proving three days of incapacitation through a combination of expert and lay testimony. The court reasoned that because the regulations implementing the FMLA are silent with respect to what is required to establish the three-day period, a plaintiff’s lay testimony could not be categorically excluded. Nevertheless, the court rejected the idea that lay testimony alone is sufficient, because some medical evidence is still necessary to show that the incapacitation was due to a serious health condition.

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