Doctor Doctor

In a recent decision, the Third Circuit Court of Appeals decided that an employee can prove she had a "serious health condition" by using her own testimony and that of a doctor to show she was unable to work for three days due to her illness.  Under the FMLA, employees can take upaid leave to take care of their own serious health condition.  One of the definitions of "serious health condition" is that an employee must be incapacitated for a period of three calendar days and receive treatment from a health care provider on at least one occasion. 

In the case, Rachael Schaar v. Lehigh Valley Health Systems, http://www.ca3.uscourts.gov/opinarch/091635p.pdf, Mrs. Shaar went to the doctor after suffering nausea, a fever, and vomiting.  Her doctor gave her a note taking her out of work for two days.  After two days, however, Mrs. Shaar was unable to go to work for another day.  Upon her return to the hospital, she was promptly fired for violating the hospital's sick policy.  The hospital claimed she did not qualify for FMLA leave because her doctor's note said she was unable to work for two days, not three.

The court held that Mrs. Shaar's testimony, in combination of her doctor's testimony, was enough to prove that she was unable to work for three days.  The court rejected the approach of some courts, which is that lay testimony alone can establish incapacity, but also rejected the hospital's doctor only approach.

The decision is a common sense victory for employees because it eliminates the need to rely exclusively on doctors or other experts to establish this prong of the serious health condition test.