Lay Testimony Can Create Fact Issues in FMLA Cases

On Wednesday, Sept. 21, 2005, Rachael Schaar received medical treatment for an illness at Lehigh Valley Health Services, where she worked as a medical receptionist. The doctor prescribed antibiotics and wrote a note to Schaar's supervisor, explaining that the illness prevented her from working that day or the next.

After the appointment, Schaar taped the note to her supervisor's door and went home. However, she did not return to work until the following Tuesday, missing a total of four days of work. Schaar's supervisor, Patricia Chromczak, threatened to fire her for violating the company policy that required employees to call in before taking sick days. Schaar said she thought posting the note on the door was sufficient.

Coincidentally, Schaar had also scheduled vacation days the Friday and Monday she stayed home, although she told Chromczak she was sick the whole weekend. Schaar never asked to convert the vacation days to sick days, and she never requested leave under the Family and Medical Leave Act (FMLA).

Schaar was fired less than a week later. In a written explanation, Chromczak cited Schaar's absences and several other documented performance problems.

Schaar sued Lehigh Valley for interference and discrimination in violation of FMLA. In a motion for summary judgment, the company argued Schaar didn't qualify for FMLA leave because she couldn't prove she was incapacitated for at least three days and also failed to give the company proper notice that would qualify her for leave. The company also claimed FMLA wasn't even the real issue: Lehigh Valley said it fired Schaar for violating the call-in policy and for ongoing poor performance.

The district court granted summary judgment to the defendant, ruling that Schaar did not establish more than three days of incapacitation. The court wrote that expert testimony, which Schaar didn't have, was necessary to establish the duration of medical incapacity. Schaar only presented her own self-diagnosis.

On appeal, a 3rd Circuit panel unanimously ruled on March 11 in Schaar v. Lehigh Valley Health Services that lay testimony such as self-diagnosis--in conjunction with medical testimony--can create a material issue of fact regarding the length of an employee's incapacitation. The decision set a new precedent for the circuit.

"[W]e find no support in the [Department of Labor] regulations to exclude categorically all lay testimony regarding the length of an employee's incapacitation," Judge Thomas Hardiman wrote for the panel.

Schaar is the first appellate-level ruling in the 3rd Circuit to clarify what type of evidence employees can present to show they suffered a serious health condition covered by the FMLA.

"It's significant, because employers now have to look at not only the medical doctor's report about the patient, but also [the patient's] self-diagnosis," says Fox Rothschild Partner Wayne Pinkstone.

Up to Speed

Different circuits have varying standards about the need for medical testimony in FMLA suits. According to Schaar, every circuit that has addressed the issue agrees, "[L]ay testimony can create a genuine issue of material fact regarding incapacitation."

The 9th and 5th Circuits don't require expert testimony at all, while the 8th Circuit only accepts lay testimony as a supplement to incomplete medical testimony. Now, the 3rd Circuit holds that lay testimony about the length of an illness is acceptable when presented alongside medical evidence.

Before Schaar, many district courts within the 3rd Circuit did not allow lay testimony to create an issue of fact. But the circuit itself had not dealt with it.

"The 3rd Circuit had never ruled on this or defined the law in this very specific area of FMLA," Pinkstone says. "[In Schaar,] it said, 'We're going to bring ourselves up to speed with the 8th Circuit and many other circuits across the country.'"

Hardiman based his ruling on the wording in the Labor Department regulation relevant to Schaar. To prove three days' incapacitation, the statute does not specifically mention medical testimony. The very next Labor statute does require a health care provider to verify an employee is too ill to work. To Hardiman, the discrepancy reveals Congress' intent.

"We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply," Hardiman wrote.

Pay Attention

FMLA compliance is always tricky because there are so many layers to the statute, says Maria Greco Danaher, a partner at Ogletree, Deakins, Nash, Smoak & Stewart.

The new ruling should remind employers how important it is to train staff to handle complicated FMLA requests. Requests must be managed on a case-by-case basis, and companies cannot afford to ignore any potentially relevant information, especially in light of Schaar.

"If someone comes in and offers lay evidence saying, 'Here's how seriously sick I was,' you can't reject it out of hand," Danaher says.

The ruling won't change much for employers on a practical level, says Anthony B. Haller, head of the employment practice at Blank Rome. Companies should already be taking these precautions, he says.

"A good employer that has the right policies in place should not have to change what [it's] doing," Haller says.

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