Medical Evidence for FMLA Leave?
If an employee is incapacitated for more than three days, she’s entitled to leave under the Family and Medical Leave Act (FMLA). What if an employee is sick and has a doctor’s note authorizing two days off? What if the employee misses days three and four and says she was still sick as a result of the medical condition diagnosed by the doctor? What if the employer fires the employee because she didn’t have medical proof for any leave beyond two days?
Those questions are presented in Schaar v. Lehigh Valley Health Services, Inc., a case decided by the Third Circuit Court of Appeals (covering Delaware, New Jersey, Pennsylvania). The lower court had found no FMLA violation, dismissing the case without a trial, because the employee failed to present medical proof that she was incapacitated for more than three days. In other words, the doctor’s note plus her own testimony about her medical condition wasn’t enough.
The Third Circuit Court of Appeals reversed the lower court’s decision and sent the case back for a trial. The Third Circuit made it clear that “lay testimony, by itself” wasn’t sufficient. However, in this case, there was a combination of medical proof and lay testimony, creating a “genuine issue of material fact” and requiring a trial.
But there’s more. The Fifth Circuit (Texas, Louisiana, Mississippi) and Ninth Circuit (Washington, Montana, Idaho, Oregon, California, Nevada, Arizona) have ruled that lay testimony is sufficient by itself to establish the required incapacitation. The Eight Circuit (North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri, Arkansas) has determined that lay testimony can only supplement incomplete medical proof to show incapacitation.
So, if an employer does business in multiple states, it could easily be subject to different standards. The U.S. Supreme Court needs to resolve this issue. Stay tuned to see if it does.
For more, see MSEC Legal.
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About Chris Parker
Chris Parker's practice focuses on the representation and counseling of companies in matters pertaining to the workplace and the protection of their intellectual property and trade secrets. In addition to serving as an advocate for clients, Mr. Parker is also trained as a mediator and frequently serves as a third-party neutral.
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About Jimmy Daniel
Jimmy Daniel provides counseling to businesses of all sizes related to the employment relationship. He assists in the drafting of employment agreements, policies, and handbooks, as well as provides guidance related to compliance with federal, state, and local legislation such as the Fair Labor Standards Act and the Family and Medical Leave Act.
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About Larry Bridgesmith
While serving in an Of Counsel relationship with the firm, Mr. Bridgesmith also serves as the Executive Director at the Institute for Conflict Resolution at Lipscomb University and as an officer and principal in Strategic Resolutions Group, LLC. In these roles, Mr. Bridgesmith brings over 30 years of legal experience in dispute resolution and innovative workplace strategies to clients, students and business entities alike.
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My husband works for AT&T and has been in out of the hospital for over a year now. They have written him up because he was in the hospital. It was not because he has done anything wrong on his preformace on his job.
He ran out of FMLA to cover him. He was in the hospital very, very, very sick and almost died.
He since has gone back to work, but now he back in the hospital very sick again.
They told me-his wife that he does not have any FMLA and now they can write him up again because he is in the hospital. This is another accurance on his record because he is not at work and he does not have any FMLA hours left.
I find this CRAZY!!!!!!
He has worked for this company for almost 20 years, and it has gotten worse with all is mombo-jombo in the last 5 years.
After reading this post, is there anything I can do to help my husband???
I am grasping at straws, until I can retire him next February.
This whole situation is very sad! He is very, very sick. All he wants to do is retire when he is able, but they seem to not be happy with those that have worked their hiney off and then become sick in their older years.
Sad in Texas for husband,
Heather
Heather,
I don’t give legal advice on this blog. Therefore, you should seek out the services of a lawyer who can evaluate all the facts (and I’m sure there are a lot more than indicated in your comment). If your husband thinks his FMLA rights have been violated, he can file a complaint with the U.S. Department of Labor. Another possibility is that he may be disabled under the ADA. That might open the possibility for filing a disability discrimination charge with the Equal Employment Opportunity Commission.
John Phillips
Thank you for your help!!! I will be looking into this, there are many, many right that have been violated on the behalf of my husband.
They have driven him over the edge as many workers have been driven over the edge at AT&T to the brink of NO return.
I am happy I have found your website. There is a wealth of information you have shared with so many people.
Heather