Employers are frequently confronted with employees who call in sick immediately before a vacation or long weekend. A recent Third Circuit Court of Appeals case provides some caution to both employers and employees in this situation when deciding whether the absence is protected by the federal Family and Medical Leave Act (FMLA). Employees cannot simply claim, without a doctor’s note or other medical evidence, that they needed to miss work due to their illness or the illness of a family member. An employer, on the other hand, should proceed with caution if an employee presents a doctor’s note, but claims that the illness lasted longer than the doctor anticipated.
On March 11, 2010, the Third Circuit (which includes New Jersey) held that, if an employee misses work due to a claimed illness, he or she must present some credible medical evidence of incapacitation in order to qualify for FMLA protected leave. More specifically, in Schaar v. Lehigh Valley Health Services, No. 09-1635 (3d Cir. Mar. 11, 2010), the employee received a doctor’s note, stating that she was unable to work for two days, Wednesday, September 21, and Thursday, September 22, 2005. Plaintiff claimed that her illness continued over the next few days, and that she remained sick in bed over the weekend, and finally felt well enough to return to work on Tuesday, September 27. Coincidentally, plaintiff has previously scheduled vacation on Friday, September 23 and Monday, September 26. Upon her return to work, plaintiff told her supervisor that she had been sick all weekend, and couldn’t work on Monday due to her illness. She did not, however, request FMLA leave, nor did she ask Lehigh Valley to convert her two paid vacation days into paid sick days. Citing plaintiff’s failure to call in sick, and in light of previous progressive discipline for performance issues, Lehigh Valley terminated plaintiff’s employment.
Plaintiff then sued under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq.,which permits employees to take up to twelve weeks of leave every twelve months for, among other reasons, their own “serious health condition.” 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.” Id. § 2611(11). Department of Labor regulations further define continuing treatment by a health care provider as a “period of incapacity . . . of more than three consecutive calendar days . . . that also involves . . . [t]reatment 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.” 29 C.F.R. § 825.114(a) (2005).
The district court dismissed the complaint, holding that an employee must present a doctor’s note or other medical evidence of inability to work for at least three days, and the note in this case stated that she was ill for only two days. According to the lower, court, plaintiff’s lay opinion that she was unable to work did not create a genuine issue of material fact to prove that she was, in fact, entitled to FMLA’s protection.
On appeal, the Third Circuit noted that some courts require medical opinion to establish that an employee had a serious health condition lasting more than three days, while other courts have allowed FMLA claims based solely on lay testimony by the employee. The Third Circuit rejected both approaches, holding that some medical opinion is necessary:
we do not find lay testimony, by itself, sufficient to create a genuine issue of material fact. Some medical evidence is still necessary to show that the incapacitation was “due to” the serious health condition. 29 C.F.R. § 825.114. This 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. Id. § 825.115. 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, we hold that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.
In other words, so long as there was some medical evidence that she was unable to work, plaintiff could supplement this opinion with her own testimony that the illness lasted longer than the doctor initially stated.
The Third Circuit further commented that it was not evaluating plaintiff’s credibility, implying that the plaintiff may have an uphill battle proving that she just happened to be too sick to work on those days that she had previously scheduled vacation. Rather, the court simply noted that, accepting plaintiff’s testimony as true, there was a genuine issue of material fact as to whether she was too ill to work for three days.
Tags: Family and Medical Leave Act, FMLA, serious health condition