In a recent decision, the United States 3rd Circuit Court of Appeals held that in determining whether an employee was sufficiently incapacitated to warrant protecting her under the Federal Medical Leave Act (FMLA), the employee’s own word as to her illness was enough to raise a genuine issue of material fact. In Schaar v. Lehigh Valley Physicians, the 3rd Circuit held that an employee who had a doctor’s certification of illness for part of her absence, and her own testimony that she was not well enough to return to work for the remainder of her absence, was protected from retaliation under the FMLA.

FMLA provides that for employers of 50 persons or more, employees are entitled to up to 12 work-weeks per year of unpaid leave to care for an ill family member or for themselves when they are ill. Significantly, FMLA provides that employees cannot be fired, disciplined or have adverse action taken against them due to taking FMLA leave. In Scharr the plaintiff had a doctor’s note for two days of leave and stayed home a third day without any medical documentation because she did not feel she was yet well enough to return to work. The 3rd Circuit reversed the District Court and held that lay testimony, in other words the employee’s own testimony as to his or her medical condition, in combination with medical testimony, could establish that the illness was serious enough to justify the leave. The Court declined to go as far as have the Fifth and Ninth Circuits, which find that lay testimony may be sufficient all by itself to establish the seriousness of the illness for FMLA purposes.

In practical terms, this means that the burden on employees of establishing the need for FMLA leave has been lowered in New Jersey, Delaware and Pennsylvania. Significantly, all the U.S. Circuits that have dealt with this question have allowed lay testimony, at least in combination with medical testimony: the 3rd, 5th, 7th, 8th and 9th Circuits. This trend could make it easier for employees with partial, periodic disabilities to take the leave they need without a heavy burden of medical certification.

C. Megan Oltman