Sunday, May 2, 2010
Schaar v Lehigh Valley Health Servs, Inc, ___F.3d____(3rd Cir. March 11, 2010), is an interesting FMLA decision. A combination of expert and lay testimony can establish that an employee was incapacitated for more than three days, a showing required by the FMLA's implementing regulations. A medical receptionist sued her employer, claiming FMLA interference and discrimination, when she was fired six days after taking two days of sick leave followed by two days of previously scheduled vacation time in order to recover from a urinary tract infection and a related illness. A district court held the employee did not establish that she had a serious health condition because she failed to present medical evidence that she was incapacitated for more than three days. The district court granted summary judgment to the employer, finding that the doctor's note she provided to her employer established incapacitation for only two days and her reliance on her own testimony about the remaining days was insufficient to establish a serious health condition. Vacating and remanding, the Third Circuit noted that all of the circuits to address the issue have held that lay testimony can create a factual issue regarding incapacitation. After reviewing the relevant DOL regulations, the appeals court found no support for the categorical exclusion of all lay testimony regarding the length of an employee's incapacitation. In contrast to the Fifth and Ninth Circuits, however, the Third Circuit did not rule that lay testimony alone was sufficient to establish incapacitation. Rather, it agreed with Eighth Circuit precedent, holding that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.
Mitchell H. Rubinstein