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.

Why do Employers Fight Unemployment Claims?

Why do employers fight unemployment claims?  After all, unemployment benefits are paid by the state, not by the individual employer.  What employers do pay is an unemployment tax.  The amount of that tax is determined by the number of claims an employer might have.

For a large employer with lots of claims, it is probably worth it to fight.  However, for small employers, it probably isn't worth it, unless the employer has an axe to grind.  Sometimes, though, the axe rebounds.

I had one case several years ago where one brother fired another brother who worked for him.  The fired brother asked the employer brother not to fight his unemployment claim.  He did.  The fired brother ended up going to the Department of Labor and reporting massive cheating on prevailing wage projects.  The employer brother ended up losing his business.

Recently I met with a worker who was fired from a small business after he called in sick.  Well, actually, he called to say that he and his pregnant wife had been in a car accident and were going to the hospital.  This employee had missed some work, not a lot, because of a medical condition; the employer does not have a sick policy.  The employer is fighting this worker's right to unemployment benefits.

After meeting with the worker I was outraged by the unfair treatment, and tried to figure out a way to help him.  Turns out that the employer is probably covered by the FMLA because he owns a few other satellite businesses that push him over the 50 employee FMLA requirement.  Now I'm looking into an FMLA claim.

The employer gained absolutely nothing by fighting the unemployment benefits of a man who just had a baby and also a car crash.  Because the employer fought this man's unemployment benefits, he now stands to lose a lot more.  Was it worth it?