Is a doctor's note and an employee's testimony that she remain sick and unable to work enough to establish an employee's entitlement to leave under the Family Medical Leave Act (FMLA)? "Yes" answered the United States Court of Appeals for the Third Circuit in Schaar v. Lehigh Valley Health Services, Inc., No. 09-1635 (March 11, 2010).
Rachel Schaar worked as a medical receptionist for Lehigh Valley and was diagnosed by her doctor, Dr. Twaddle, with a urinary tract infection and treated for low back pain, fever, nausea and vomiting. Dr. Twaddle wrote a note stating that Schaar would be unable to work for two days, Wednesday, September 21 and Thursday, September 22, which Schaar taped to her supervisor's door. Although she did not seek further treatment from Dr. Twaddle, Schaar testified that she remained too ill to work until the following Tuesday, missing a total of four days of work because of her illness. Two weeks later she was fired, allegedly because she did not call them properly to report her illness (taping Dr. Twaddle's note to her supervisor's door was deemed insufficient) and for allegedly poor work performance.
Schaar filed a wrongful termination suit under the FMLA claiming unlawful discrimination and interference with her rights under the FMLA. The FMLA allows an eligible employee to take leave for a "serious health condition" which must include a "period of incapacity ... of more than 3 consecutive calendar days" and includes treatment by a healthcare provider and a "regimen of continuing treatment under the supervision of the healthcare provider." 29 C.F.R. sec. 825.114(a). A "regimen of continuing treatment" includes "a course of prescribed medication." 29 C.F.R. sec. 825.114(b).
Dr. Twaddle's note established that Schaar was incapacitated from work for two days so the question was whether her testimony that she remain sick for three more days was sufficient to establish her entitlement to FMLA leave. The court ruled that a commendation of expert and lay testimony could establish an employee's entitlement to FMLA leave because of a "serious health condition." Therefore, the combination of Dr. Twaddle's note, which covered two days, and showers own testimony, which covered two more days, was enough to show that Schaar suffered the serious health condition for which she was entitled to take FMLA. leave. The United States Court Of Appeals for the Eighth Circuit reached a similar conclusion in Rankin v. Seagate Technologies, Inc., 246 F.3d 1145 (8th Cir. 2001).
