Third Circuit Holds that Medical Evidence and Lay Testimony Combined May Be Sufficient to Establish a Serious Health Condition Under the FMLA
The U.S. Court of Appeals for the Third Circuit recently ruled in Schaar v. Lehigh Valley Health Servs., Inc., et al., 2010 WL 825257 (3d. Cir. 2010), that a combination of medical evidence and lay testimony can establish a question of material fact as to whether an employee has a "serious health condition" under the Family and Medical Leave Act ("FMLA"). In doing so, the Third Circuit adopted a middle-ground approach in a growing split among the courts that have addressed this question.
In Lehigh Valley, the employee provided a doctor's note to her employer stating that she was unable to work on Wednesday and Thursday. The employee then missed her next two work days (Friday and Monday) because she had previously scheduled them as vacation days; however, the employee claimed that she remained ill through Sunday. After the employee returned to work as scheduled on Tuesday, the employer terminated her employment, in part based on her unscheduled absences on Wednesday and Thursday.
The employee filed suit claiming that the employer interfered with her rights under the FMLA. To prevail, the employee needed to establish that she suffered from a "serious health condition," which the FMLA defined as "an illness, injury, impairment, or physical or mental condition that involves … continuing treatment by a health care provider." The applicable regulations defined the phrase, "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."
Courts differ on the type of evidence needed to establish a "serious health condition." Some district courts have held that a medical provider's professional opinion is the only evidence that can establish that an employee suffered from a "serious health condition." Other courts, including the Fifth and Ninth Circuits, have held that lay testimony alone can create a question of material fact (which must be resolved by a jury) as to whether the employee suffered from a "serious health condition." Finally, the Eighth Circuit has allowed lay testimony to supplement incomplete medical evidence.
In Lehigh Valley, the Third Circuit adopted the approach used by the Eighth Circuit. Reasoning that the regulation defining continuing treatment by a health care provider does not speak to whether medical evidence is required, the court rejected a categorical exclusion of lay testimony. Conversely, the court also rejected the notion that lay testimony alone could suffice because, in the court's view, it would place too heavy of a burden on employers. Accordingly, the court ruled that where, as here, medical testimony established that the employee was unable to work for part of the three-day period, lay testimony could be used to raise a question of material fact as to whether the employee remained unable to work for the balance of that period.
The Lehigh Valley opinion illustrates the difficulty employers face when trying to determine whether an employee adequately demonstrated that he or she suffers from a "serious health condition," and how the analysis will be influenced by the jurisdiction in which the decision must be made. The opinion also serves as a reminder to employers not to become so singularly focused on the doctor's note that they turn a blind eye to surrounding circumstances, which may suggest that the employee's health condition is more serious than is apparent from the face of the note.
In Lehigh Valley, the employee provided a doctor's note to her employer stating that she was unable to work on Wednesday and Thursday. The employee then missed her next two work days (Friday and Monday) because she had previously scheduled them as vacation days; however, the employee claimed that she remained ill through Sunday. After the employee returned to work as scheduled on Tuesday, the employer terminated her employment, in part based on her unscheduled absences on Wednesday and Thursday.
The employee filed suit claiming that the employer interfered with her rights under the FMLA. To prevail, the employee needed to establish that she suffered from a "serious health condition," which the FMLA defined as "an illness, injury, impairment, or physical or mental condition that involves … continuing treatment by a health care provider." The applicable regulations defined the phrase, "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."
Courts differ on the type of evidence needed to establish a "serious health condition." Some district courts have held that a medical provider's professional opinion is the only evidence that can establish that an employee suffered from a "serious health condition." Other courts, including the Fifth and Ninth Circuits, have held that lay testimony alone can create a question of material fact (which must be resolved by a jury) as to whether the employee suffered from a "serious health condition." Finally, the Eighth Circuit has allowed lay testimony to supplement incomplete medical evidence.
In Lehigh Valley, the Third Circuit adopted the approach used by the Eighth Circuit. Reasoning that the regulation defining continuing treatment by a health care provider does not speak to whether medical evidence is required, the court rejected a categorical exclusion of lay testimony. Conversely, the court also rejected the notion that lay testimony alone could suffice because, in the court's view, it would place too heavy of a burden on employers. Accordingly, the court ruled that where, as here, medical testimony established that the employee was unable to work for part of the three-day period, lay testimony could be used to raise a question of material fact as to whether the employee remained unable to work for the balance of that period.
The Lehigh Valley opinion illustrates the difficulty employers face when trying to determine whether an employee adequately demonstrated that he or she suffers from a "serious health condition," and how the analysis will be influenced by the jurisdiction in which the decision must be made. The opinion also serves as a reminder to employers not to become so singularly focused on the doctor's note that they turn a blind eye to surrounding circumstances, which may suggest that the employee's health condition is more serious than is apparent from the face of the note.
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