Third Circuit Says Lay Testimony Can Help to Establish “Serious Health Condition” Under FMLA

The Family and Medical Leave Act (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 that makes the employee unable to perform the functions of the position of such employee.”  The Act defines a serious health condition as an illness or other condition that involves “continuing treatment by a health care provider.”  The regulations related to the FMLA require a showing of at least three days of incapacitation plus treatment by a health care provider, in order to support a claim of serious health condition.  However, those regulations do not require – or even mention – that expert medical evidence is necessary to prove those days of incapacitation, and courts have been left to determine the role that a doctor’s diagnosis plays in that proof.  Recently, the 3d U.S. Circuit Court of Appeals held that a combination of personal and medical testimony regarding the illness of a medical practice receptionist was sufficient to raise a jury issue regarding whether that person suffered from a serious health condition sufficient to support a claim under the FMLA.  Schaar v. Lehigh Valley Health Services, Inc., 3d Circ., No. 09-1635, March 11, 2010.

Rachael Schaar worked as a medical receptionist for the Lehigh Valley Physicians Business Services (Lehigh Valley) in Bethlehem, Pennsylvania, from December 2002 until her employment was terminated for violation of the group’s absence/call-off policy.  On Wednesday, September 21, 2005, Schaar was diagnosed – by one of Lehigh Valley’s physicians – with a urinary tract infection, fever, and low back pain.  The physician prescribed an antibiotic and an anti-inflammatory, and wrote a note advising Schaar’s supervisor 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, and returned to work on September 27, claiming that she had spent the weekend sick in bed, and had felt well enough to get up and around only on Monday.  Schaar did not request FMLA leave for her absence, nor did she ask to have her vacation days converted to sick days.  Although Schaar’s supervisor initially said that Schaar could be fired for failing to call off on her two sick days, she 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 terminated, and was informed that the termination was based on “never calling off from work,” along with certain performance issues. 

Schaar sued Lehigh Valley and its parent corporation, claiming interference with her FMLA rights.  In its motion for summary judgment, Lehigh Valley asserted that Schaar has failed to prove that she was “incapacitated” for three days, as required under the FMLA.  The lower court granted that motion, finding that because she had not presented expert medical testimony establishing three days of incapacity, Schaar has failed to prove that she suffered from a “serious medical condition.”  On appeal, the Third Circuit addressed the issue of whether Schaar presented evidence that she was incapacitated for more than three days, and the question of 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) 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 have used the first approach, the Third Circuit has established, through this decision, that lay testimony can create an issue of fact regarding a 3-day incapacitation, so long as medical evidence has been proffered to establish the underlying medical condition.  The Court points out that while the subject DOL regulation does not speak specifically to whether medical testimony is required, a related regulation requires the testimony of a health care provider in order 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 would not categorically exclude such evidence. 

Therefore, while the Court has 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 “serious health condition”), it has determined that such evidence can be sufficient if it is offered in combination with medical evidence linking incapacitation to the subject health condition.   Because of 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.