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.

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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."

Assistant Editor

Christopher Danzig

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