Rachel Schaar worked as a medical receptionist for Lehigh Valley Health Services for three years until her termination. Two weeks prior to her termination she was treated for a urinary tract infection. Her physician prescribed medication. He wrote a note indicating that Schaar would be unable to work due to her illness for the next two days. Schaar took paid sick leave for those two days (Wednesday-Thursday). She remained absent on Friday and Monday. She claimed to be sick on those days. Schaar had previously secured approved vacation leave for Friday and Monday. Schaar did not request FMLA leave for those days. Nor did she ask to convert those days from paid vacation to paid sick leave. Schaar was subsequently terminated for failure to call off sick on Friday and Monday as required by company policy. She sued alleging interference and discrimination in violation of the FMLA. The district court awarded summary judgment to Lehigh Valley, holding that Schaar failed to establish that she had a serious health condition because medical testimony was needed establish that her incapacity over the weekend was due to the illness.
On appeal, the Third Circuit reversed the award of summary judgment to Lehigh Valley. In so doing the Court noted a three-way split by courts regarding the type of evidence needed to establish that she was incapacitated by a serous health condition: (1) the evidence of incapacitation must come exclusively from a medical professional; (2) lay testimony, on its own, is sufficient; or (3) lay testimony can supplement medical professional testimony or other medical evidence. The court noted that "continuing treatment by a health care provider," 29 CFR 825.114, does not, by its plain terms, "require, or even mention, a health care provider determination." As such, the court rejected the approach requiring that evidence of incapacitation come exclusively from medical professionals, and not lay testimony. However, the court also rejected the approach that lay testimony alone may create a genuine issue of fact regarding the existence of a serious health condition. "Some medical evidence is still necessary to who that incapacitation was "due to" the serious health condition. The court remanded the matter for further development of the record consistent with its determination.
Comment: The decision will require employers to exercise greater caution when considering whether an employee who is absent in excess of the amount covered by a medical certification nevertheless has an FMLA-covered serious health condition and, therefor, is protected from discipline, for the full absence. Unfortunately, the decision does not provide guidance on how much lay evidence in addition to medical evidence is necessary for an employer to determine whether the full absence is covered by the FMLA. To rule out FMLA coverage, this will require employers to conduct a thorough investigation of each incident before denying the leave or taking disciplinary action. Employers should seriously consider requiring employees to confirm the existence of a serious health condition by submission of a medical certification for the entire period and, if necessary, challenging the certification with a second medical exam.
The Third Circuit covers New Jersey, Delaware, Pennsylvania, and the Virgin Islands. The decision is also a handy resource for the how other federal Circuit Courts have handled the situation.