Earlier this month, the Third Circuit Court of Appeals addressed an issue of first impression for the Court: whether a combination of medical evidence and lay evidence is sufficient to establish that an employee was incapacitated for more than three days, and thus, suffered from a “serious health condition” under the FMLA. In Schaar v. Lehigh Valley Health Services, Inc., 09-1635, the Third Circuit answered this question in the affirmative.
Rachael Schaar worked as a medical receptionist for Lehigh Valley from December 2002 until her termination in October 2005. On or about September 21, 2005, Schaar was treated for low back pain, fever, nausea and vomiting by Dr. Twaddle, who also worked for Lehigh Valley. Dr. Twaddle wrote Schaar a note advising Schaar’s supervisor that her illness prevented her from working on Wednesday, September 21 and Thursday, September 22. The note stated that Schaar was under his care for “febrile illness and will be unable to perform duties at work today or tomorrow.” Following her visit with Dr. Twaddle, Schaar taped the note to her supervisor’s door and left work. Consistent with Dr. Twaddle’s note, Schaar was in bed with pain, fever and vomiting on September 21 and 22. By chance, Schaar had previously scheduled vacation days for Friday, September 23, and Monday, September 26. Schaar testified that on Friday she was still vomiting and nauseous, on Saturday and Sunday she was still ill, and by Monday, she was well enough to do some housework. She returned to work on Tuesday, September 27. Schaar did not request her leave to be counted as FMLA leave and Lehigh Valley did not designate it as such.
Six days after Schaar returned to work, Lehigh Valley terminated her employment. In a written explanation, Schaar’s supervisor stated that she was terminated for taping a note to the manager’s door and leaving and never calling out sick. The explanation also listed several mistakes and performance issues relating to Schaar’s job responsibilities about which Schaar had previously been warned and suspended.
The District Court
Following her termination, Schaar sued Lehigh Valley, asserting discrimination and interference in violation of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). Lehigh Valley moved for summary judgment and argued that Schaar did not qualify for FMLA leave because she failed to establish that she was incapacitated for more than three days and failed to give proper notice that she may qualify for leave. Lehigh Valley also argued that it fired Schaar for violating the call-in policy, not for taking FMLA leave, and that it would have fired her for poor performance.
The district court granted summary judgment for Lehigh Valley and held that Schaar did not establish a serious health condition because she failed to present medical evidence that she was incapacitated for more than three days. The district court reasoned that expert medical testimony is necessary to establish incapacity. The district court did not address the question of notice.
The Third Circuit
The issue on appeal was whether Schaar presented evidence of incapacitation for more than three consecutive days under the FMLA. The FMLA entitles employees up to twelve workweeks of leave during any twelve month period if the employee has a serious health condition that makes the employee unable to perform the functions of the position. A “serious health condition” includes a “period of incapacity of more than three consecutive, full calendar days.” 29 C.F.R.§ 825.115
As this was an issue of first impression for the Third Circuit, the Court looked at three approaches adopted by other courts: (1) the evidence of incapacitation must come exclusively from medical evidence; (2) lay testimony, on its own, is sufficient; or (3) lay testimony can supplement medical evidence. The Court rejected the approach of the Fifth and Ninth Circuits, which hold that lay testimony is sufficient, by itself, to establish incapacitation. The Court followed the Eighth Circuit, which allows lay testimony to supplement incomplete medical evidence.
The Court reasoned that the regulation at issue, which provides that a serious health condition can be established by more than three days of incapacitation, does not address whether medical testimony is required. 29 C.F.R.§ 825.115. In another regulation, however, the Department of Labor requires a “health care provider” to determine whether an employee is “unable to perform the functions of the position.” § 825.123. The Court stated, “[b]ecause the incapacitation regulation does not require, or even mention, a health care provider determination . . . we find no support in the regulations to exclude categorically all lay testimony regarding the length of an employee’s incapacitation. The Court also stated that requiring some medical evidence does not place an undue burden on employees because they must present some medical evidence anyway to establish the inability to perform the functions of the position. In contrast, allowing unsupported lay testimony would place too heavy a burden on employers to inquire into an employee’s eligibility for FMLA leave based solely on the employee’s self-diagnosed illness. For these reasons, the Third Circuit held “that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.”
Therefore, Dr. Twaddle’s testimony that Schaar was incapacitated for two days, combined with Schaar’s lay testimony that she was incapacitated for two additional days, created a material issue of fact as to whether Schaar suffered a serious health condition under the FMLA.
The Third Circuit’s decision in Scharr makes clear that employers can be held liable under the FMLA even where an employee has not requested FMLA leave and where incapacitation is established, in part, by the employee’s own self-serving lay testimony. This decision underscores the importance of being cautious of FMLA issues when terminating an employee following leave, even where the leave lasts only a few days and has not been designated as FMLA.