Employee's Own Testimony Can Help Prove FMLA Eligibility

March 16, 2010 (PLANSPONSOR.com) – A federal appellate court has ruled that an employee's own testimony can be used in conjunction with medical evidence to prove eligibility for Family and Medical Leave Act (FMLA) leave.

Setting its precedent, the 3rd U.S. Circuit Court of Appeals noted the regulation at issue in this case provides that the ambiguous statutory language “continuing treatment by a health care provider,” can be satisfied by showing at least three days of incapacitation, but does not speak to whether medical testimony is required. Because the regulation does not require, or even mention, a health care provider determination, the court said it finds no support in the regulations to exclude categorically all lay testimony regarding the length of an employee’s incapacitation.      

The appellate court also noted that all of the circuits that have addressed the question have held that lay testimony can create a genuine issue of material fact regarding incapacitation, and some have held that lay testimony alone is sufficient to establish incapacitation. However, the 3rd Circuit did not find lay testimony, by itself, sufficient to create a genuine issue of material fact, and said some medical evidence is still necessary to show that the incapacitation was “due to” the serious health condition.      

Rachael Schaar worked as a medical receptionist for Lehigh Valley Health Services from December 2002 until her termination on October 3, 2005. Two weeks before she was fired, on September 21, 2005, Schaar was treated for low back pain, fever, nausea, and vomiting.       

The doctor who treated Schaar, who also worked for Lehigh Valley, wrote a note advising Schaar’s supervisor that her illness prevented her from working Wednesday, September 21, and Thursday, September 22. Schaar taped the note to her supervisor’s door and went home. She had previously scheduled vacation days on Friday, September 23 and Monday, September 26, and she testified that she was still sick and stayed in bed on Friday and Saturday.      

Six days after returning to work Schaar was terminated for violating Lehigh Valley’s policy that employees must call in on sick days. The written explanation also listed several mistakes and performance issues relating to essential aspects of Schaar’s job that she had been disciplined for in the past.     

Schaar sued Lehigh Valley and in its motion for summary judgment, Lehigh Valley argued Schaar did not qualify for FMLA leave because she failed to establish she was incapacitated for three days and failed to give proper notice that she may qualify for leave. Lehigh Valley also argued that it could not be liable because it fired Schaar for violating the call-in policy, not for taking FMLA leave, and because it would have fired her anyway for poor performance.      

A district court granted Lehigh Valley’s motion for summary judgment, holding 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 appellate court remanded the case to the lower court for further proceedings.      

The opinion in Schaar v. Lehigh Valley Health Services, Inc. is here.