Employment-Third Circuit Holds That An Employee Seeking FMLA Leave May Prove Her More Than Three Days Of Incapacity Through A Combination Of Expert Medical And Lay Testimony

In Schaar v. Lehigh Valley Health Services, Inc., No. 09-1635 (3rd Circuit 2010), the district court held that the employee/plaintiff did not qualify for leave under the Family and Medical Leave Act (the “FMLA”), because she did not present evidence of a serious health condition. The question on appeal was whether a combination of expert and lay testimony can establish that an employee was incapacitated for more than three days, as required by the FMLA regulations in order for the employee to be treated as having a serious health condition. The plaintiff had been fired, and had brought suit in federal court against her employer, claiming interference and discrimination in violation of the FMLA. The district court granted summary judgment in favor of the employer, and plaintiff appealed.

In analyzing the case, the Court said that to prevail on her appeal, the employee had to be entitled to take FMLA leave. To be so entitled, among other things, the employee had to be suffering from a serious health condition. As relevant to this case, the FMLA defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a health care provider. In turn, the FMLA regulations at (29 C.F.R. section 825.114(a)) defines “continuing treatment by a health care provider” as a period of incapacity of more than three consecutive calendar days that also involves treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider. That regulation defines “incapacity” as the inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

The Court then said that the issue in dispute in this case is whether the employee has presented evidence that she was incapacitated for more than three days. Here, the employee’s only medical evidence of the incapacity was a doctor’s note, which established incapacity for just two days. The employee has to rely on her own testimony to establish incapacity for the remaining days. The Court noted that the courts (including district courts in the Third Circuit) have adopted three approaches for determining whether the more than three days of incapacity requirement is met: (1) the evidence of incapacity 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. Based on its reading of the statute and the regulations, the Court took another approach, holding that an employee may satisfy her burden of proving three days of incapacity through a combination of expert medical and lay testimony.

In this case, the employee’s own testimony raised a material question of fact as to whether she was incapacitated for the additional days, so that she had a serious health condition. The Court overturned the district court’s grant of summary judgment for the employer, and remanded the case back to the district court to answer this question.