Employment Law | Expert Legal Commentary
May 28, 2010
Schaar v. Lehigh Valley: Medical + Lay Evidence Can Establish FMLA Eligibility
Rachael Schaar v. Lehigh Valley Health Services Inc.
Jeremy Gray of Zuber Lawler & Del Duca
In a case of first impression, the U.S. Court of Appeals for the Third Circuit has ruled that an employee’s self-serving lay testimony, in combination with medical evidence, can be sufficient to establish a “serious medical condition” under the Family and Medical Leave Act (FMLA). The case, Rachael Schaar v. Lehigh Valley Health Services Inc., 598 F.3d 156 (3rd Cir. 2010), diverted from the previous practice of district courts in the Third Circuit, which had required that supporting evidence come exclusively from a medical provider. More importantly, the case sounds a warning to all employers to proceed with extreme caution when taking action adverse to employees shortly after they claim sick leave of any duration, for any reason.
Rachael Schaar worked as a medical receptionist for Lehigh Valley from December 2002 until her termination in October 2005. On Wednesday, September 21, 2005, Schaar was treated for a urinary tract infection, low back pain, fever, nausea, and vomiting by Dr. Twaddle, a doctor at Lehigh Valley. Dr. Twaddle prescribed medicine and wrote a note advising Schaar’s supervisor that her illness would prevent her from working on Sept. 21 and 22. Schaar taped the note to her supervisor’s door and went home.
Schaar took paid sick days Sept. 21 and 22. She had previously scheduled vacation for Friday, Sept. 23 and Monday, Sept. 26, and she was absent from work on those days as planned. When Schaar returned to work on Tuesday, Sept. 27, she claimed that she had remained ill and mostly in bed through the weekend and was only well enough by Monday to do some housework. She did not request for her vacation days to be converted to sick days, and she did not request that her leave be counted as FMLA leave, nor did Lehigh Valley designate it as such.
Six days later, Schaar was terminated. In a written explanation, Schaar’s supervisor stated that she was terminated for taping the note to her manager’s door and leaving without ever calling in sick pursuant to company policy. The explanation also included several mistakes and performance issues for which Schaar had previously been warned and suspended.
Schaar sued Lehigh Valley, claiming discrimination and interference in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. section 2601 et seq. Lehigh Valley moved for summary judgment arguing that Schaar did not qualify for FMLA leave because she failed to prove that she was “incapacitated” for three days and because she failed to give proper notice that she may qualify for leave. In the alternative, Lehigh Valley argued that it did not fire Schaar for taking FMLA leave, but for violation of the call-in policy and because it would have fired her anyway for poor performance.
The District Court granted summary judgment in Lehigh Valley’s favor and dismissed the case. Consistent with the practice in other district courts in the Third U.S. Circuit, the District Court found that because Schaar did not present expert medical testimony establishing three days of incapacity, she failed to prove that she suffered from a “serious health condition” required to qualify for FMLA. The District Corut did not address the question of notice. Schaar appealed.
Medical testimony + lay testimony can together establish length of incapacity
The issue before the Third Circuit U.S. Court of Appeals was one of first impression for the court – whether Schaar was able to present sufficient evidence that she was incapacitated for at least three days, even though she could not establish that exclusively through expert medical testimony. (Indeed, Dr. Twaddle actually testified that Schaar should have been well after one or two days and it was unlikely – though possible – that she could have been incapacitated for longer than two days.)
The FMLA entitles an eligible employee up to 12 weeks of leave if the employee can show that she suffers from a “serious health condition” that makes the employee unable to perform the functions of the job. The Act defines a “serious health condition” as an illness or other condition requiring “continuing treatment by a health care provider.” 29 U.S.C. section 2611(11). The regulations interpreting the FMLA further require that a “serious health condition” includes a “period of incapacity of more than three consecutive, full calendar days.” 29 C.F.R. section 825.115.
The Third Circuit considered the three different prevailing approaches taken by the courts: 1) the District Court’s approach, requiring evidence of incapacitation to come exclusively from medical evidence; 2) the approach of the 5th and 9th Circuits, which hold that lay testimony alone may be sufficient to establish incapacitation; and 3) the 8th Circuit’s approach, allowing lay testimony to supplement incomplete medical evidence. 598 F.3d at 159-160.
The 3rd Circuit decided to follow the 8th Circuit’s approach, reasoning that while the regulations do require a health care provider to determine whether the employee is “unable to perform the functions of the position” (29 C.F.R. section 825.123), it does not specifically require medical testimony regarding the length of the employee’s incapacitation. “Because 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.” 598 F.3d at 161.
The Court determined that the 8th Circuit’s approach was the right balance of burdens. Under this approach, employees are not unduly burdened because they have to present medical evidence anyway to establish their inability to perform job functions. On the other hand, allowing unsupported lay testimony, as the 5th and 9th Circuits do, places “too heavy a burden on employers to inquire into an employee’s eligibility for FMLA leave based solely on an employee’s self-diagnosed illness. Id.
In the end, the 3rd Circuit held “that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.” Id. As a result, Dr. Twaddle’s testimony that Schaar was incapacitated for two days, combined with Schaar’s testimony that she was incapacitated for two additional days, created a material issue of fact as to whether Schaar qualified for FMLA leave, thus preventing summary judgment.
Schaar makes it clear that employers can be held liable under the FMLA even when an employee has not requested FMLA leave and where the employee’s own self-serving testimony is required to establish the requisite period of incapacitation to qualify for FMLA leave. The result – employers must be prudent and thorough when evaluating employee claims of incapacity that are longer than the doctor specified. Employers should consider both medical and lay information in evaluating an employee’s FMLA eligibility and in close calls, they might consider granting the leave in lieu of ending up in court.
More importantly, employers must be very cautious when terminating an employee shortly after that employee has taken a leave, even when the leave was very short and not designated as an FMLA leave.
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