The employee's doctor may not have the last word on whether the employee has a serious health condition.
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FMLA Update:
Who Decides Whether The Employee
Is Sick Enough For FMLA Leave?
By Christopher W. Olmsted
An employee may be entitled to a protected leave of absence under the FMLA when she has a serious “medical condition” during a “period of incapacity.” Who decides whether the employee is incapacitated? A doctor? The employee? A recent case titled Schaar v. Lehigh Valley Health Services, Inc. wrestled with this issue.
Ms. Schaar worked as a medical receptionist for Lehigh Valley Health Services. She became ill and took time off from work. She visited her doctor, who diagnosed her with a urinary tract infection, fever and lower back pain. He prescribed an antibiotic. He believed that her symptoms would disappear in a day or two.
The doctor wrote a note to the employer stating that Ms. Schaar was unable to work for two days. Ms. Schaar went into work, taped the note to her supervisor’s door, and left. She did not call off.
Ms. Schaar did not appear for work the next two days because she had previously scheduled three vacation days. In any event, in her own opinion she was too sick to work. She said she spent most of the time in bed. She came back to work after the third vacation day.
A few days later, the company fired Ms. Schaar. The company claimed that Ms. Schaar violated company policy by failing to call off sick. Also, she had ongoing performance deficiencies following a prior disciplinary warning.
Ms. Schaar sued, claiming a violation of the FMLA. She argued that her time off was protected under the FMLA and that the employer had an obligation to reinstate her.
Lehigh Valley argued Schaar did not qualify for FMLA leave because she failed to establish she was incapacitated for three days (as required under the FMLA) and failed to give proper notice that she may qualify for leave. Alternatively, Lehigh Valley argued that it could not be liable because it fired Schaar for violating the call-in policy, not for taking FMLA leave, and because it would have fired her anyway for poor performance.
FMLA Definition of “Serious Health Condition”
An employee who is unable to perform the essential functions of his or her position because of a serious health condition is entitled to an FMLA leave of absence. A “serious health condition” under the FMLA is “an illness, injury, impairment, or physical or mental condition” that involves:
inpatient (overnight) care in a hospital, hospice, or residential medical care facility”; or
“continuing treatment by a health care provider.”
Where the serious health condition involves continuing treatment by a health care provider, the employee must experience a “period of incapacity” of more than three consecutive calendar days.
“Incapacity” means the employee is unable to work, attend school or perform other regular daily activities due to the employee's serious health condition, treatment, or recovery therefrom.
Who Decides “Incapacity”
In Ms. Schaar’s case, she testified that she was in fact incapacitated for three days. She claimed that she was quite ill for about four days, spending most of the time in bed or on the couch. Her own doctor wasn’t entirely in agreement. He testified that she should have been well after one or two days. He said it was possible, though unlikely, that she could have been incapacitated longer than two days.
The issue came down to this: what evidence determines “incapacity” to qualify for FMLA protection? Is it medical evidence only? Can the employee’s subjective testimony about her ability to work establish incapacity? Or can it be a combination?
The answer is: it depends on the jurisdiction. Ms. Schaar, who worked in Pennsylvania, filed her case in the Federal Third Circuit. The appellate court in her case determined that some medical evidence is necessary to establish incapacitation due to a serious health condition, but the employee’s own testimony regarding the length of incapacitation may also be taken into account.
The court reasoned: “Some medical evidence is still necessary to show that the incapacitation was ‘due to’ the serious health condition. This does not place an undue burden on employees because they must present some medical evidence anyway to establish the inability to perform the functions of the position.” On the other hand, merely allowing unsupported employee testimony “would place too heavy a burden on employers to inquire into an employee’s eligibility for FMLA leave based solely on the employee’s self-diagnosed illness.”
The court concluded that Ms. Schaar could be protected by the FMLA. Her doctor said that she was incapacitated for two days, and Ms. Schaar testified that she was incapacitated for four days. This was enough evidence to show possible FMLA coverage. Therefore, the appellate court concluded that the case should return to the trial court for further proceedings. Ultimately, the trial court or a jury will have to weigh the medical evidence and Ms. Schaar’s testimony in order to determine whether or not Ms. Schaar was protected by the FMLA.
The Rule Is Different Elsewhere
In the Schaar case, the Third Circuit determined that at least some medical evidence is necessary to support the existence of “incapacity,” but there are other circuits where the rule is different.
Here in California (which is part of the 9th Circuit), at least one federal appellate court has held that testimony from the employee alone may be sufficient to establish incapacity. Medical evidence is not necessary. In fact, the court stated that the testimony of the employee regarding incapacity can be sufficient even where the medical evidence contradicts his statements.
This rule is completely impractical from a business standpoint. Certainly there are employees who will exaggerate their medical incapacity in order to gain protection under the FMLA. A doctor’s opinion ought to be the deciding factor.
The Bottom Line
Employers ought to follow the FMLA procedures for medical certification in order to ascertain whether an employee is entitled to FMLA leave. The Department of Labor medical certification form will walk the doctor through the process. (Note: in California, employers should not use the part of the form seeking details about the nature of the illness.)
Where the employee claims that he or she was incapacitated longer than the doctor specified, it may be prudent to ask the employee for more details and determine whether the employee may be covered after all. Because the rule in California is ambiguous, when it is a close call, employers may want to err on the side of caution and allow FMLA leave rather than debate the issue in court.
Related Article:
California Employee Leaves Update: Not All New FMLA Regulations Apply In California.
Download entire April 2010 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2010 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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