Saturday, June 23rd 2018
 

Cough Cough Sniff Sniff: Navigating Time Off Under the Family and Medical Leave Act

Although the country witnessed the House pass a historic health care reform bill late Sunday  night, many of us still had to roll out of bed early this morning and head to work. Of course, unless you called in sick.

The U.S. Court of Appeals for the 3rd Circuit recently issued an opinion on an issue of first impression in Schaar v. Lehigh Valley involving the sufficiency of evidence documenting an incapacitating medical condition under an employer’s Family and Medical Leave Act sick leave policy.

The Family and Medical Leave Act requires employers to grant an eligible employee up to 12 weeks of unpaid leave during any 12-month period for one or more of the following reasons:

  • for the birth and care of the newborn child of the employee;
  • for placement with the employee of a son or daughter for adoption or foster care;
  • to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
  • to take medical leave when the employee is unable to work because of a serious health condition.

The health system, Lehigh Valley, had employed Rachael Schaar for approximately three years as a medical receptionist.  On a Wednesday in 2005, Ms. Schaar was treated for low back pain, fever, nausea and vomiting.  Her treating physician diagnosed her with an infection, fever and low back pain, and prescribed medication before providing her with a medical certification. Ms. Schaar taped this medical certification and a note to her manager’s door, stating that she was unable to work that day or the next.

But her manager was suspicious.  It turns out Ms. Schaar had previously scheduled 2 vacation days to allow for a 4-day weekend.  But, between her sick and vacation days, she ended up missing 4 straight work days.  She claimed that she remained ill all  weekend, even though the doctor’s note covered just two days.

Ms. Schaar did not request an FMLA leave, and Lehigh Valley did not provide her with any paperwork for an FMLA leave.  Apart from that issue, her manager also expressed displeasure at the way she handled her sick leave before insinuating that she might be fired for it.  Six days later, Lehigh Valley did fire her, claiming she had broken its sick leave policies and citing previous mistakes and performance-related issues.

The court’s ruling.  The only issue for the Third Circuit to determine was whether Rachael could make out a valid claim for FMLA leave, which provides the employee with job protection and prohibits discrimination or retaliation, when the medical evidence established a two-day leave instead of the FMLA statutory minimum.

The court first noted that the purpose of the FMLA is “to balance the demands of the workplace with the needs of families,” including reasonable leave for medical reasons.  The court went on to summarize the FMLA’s basic provisions, including providing eligible employees with up to 12 weeks per year of leave for the employee’s own “serious health condition that makes the employee unable to perform” his or her job.  Once an employee is entitled to leave,” the FMLA prohibits an employer from interfering with it or retaliating against an employee for taking it.”

- Flatser Greenberg

The critical issue on appeal in this case was the sufficiency of evidence required to establish the need for medical leave, which lasts three or more days.  Rachael benefited from the ambiguity of the federal regulations that apply to the statute.  In its opinion, the court noted that four other federal appellate courts had previously examined this issue and ruled that expert medical testimony is not the only way to establish an incapacitating medical condition.

Relying on the trend established by other circuits, the court concluded that lay testimony when combined with “some medical evidence . . . to show that the incapacitation was ‘due to’ the serious health condition,” can be enough to satisfy the employee’s burden to prove that the employee is entitled to FMLA leave.  The court was quick to note, however, that lay testimony on its own will not meet the burden of proof for FMLA leave within the states encompassed by the Third Circuit:

“[A]llowing unsupported lay 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.”

What does this mean for an employee?  Well, it depends on what circuit you live in.  The different Federal circuits that have examined the sufficiency of evidence in proving a valid FMLA leave request have not issued uniformly consistent opinions.  So, to be on the safe side, below are some tips to properly manage your sick leave requests. These guidelines may help you if you are faced with a situation in which you must request sick leave:

  • Familiarize yourself with your employer’s personnel rules or handbook and understand who has been assigned to act as your Human Resources representative.
  • Understand the employer’s sick day notification policy, whether that means daily call-ins for each sick day taken or some other preferred check-in method.
  • Make your sick leave request in writing, unless some other method has been specified by your personnel handbook.  In addition, make sure to direct your request to your direct supervisor or manager as well as your HR representative.  Rare is the manager who is fully trained in the FMLA.  Therefore, by dealing with the HR Department from the beginning, an employee eliminates potential unnecessary confusion.
  • You do not need to specify that you seek an FMLA leave since it is the employer’s burden to comply with FMLA requirements.  Rather, if an employee is incapacitated and unable to carry out his or her duties for longer than three days, the employee should provide notice of the incapacitating medical condition to the employer.
  • Contact a physician and document the incapacitating medical condition and the expected duration until recovery.  Provide the medical certification to the appropriate employer contact.

Posted by Krystyna on March 22, 2010 at 11:42am.

One Response to “Cough Cough Sniff Sniff: Navigating Time Off Under the Family and Medical Leave Act”

  1. [...] Cough Cough Sniff Sniff: Navigating Time Off Under the Family and … By Krystyna Ms. Schaar did not request an FMLA leave, and Lehigh Valley did not provide her with any paperwork for an FMLA leave. Apart from that issue, her manager also expressed displeasure at the way she handled her sick leave before insinuating … LegalFish: The Daily Tackle – http://www.legalfish.com/TheDailyTackle/ [...]

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