Under the Family and Medical Leave Act, an employee can qualify for job-protected leave by demonstrating that he or she suffers from a Serious Health Condition (SHC). The most common basis for a SHC is the "absence plus treatment" category. An employee must be incapacitated for three consecutive days, visit a health care provider, and receive some sort of continuing treatment. If the health care provider cannot confirm that the employee was incapacitated for three days, does this disqualify her from claiming entitlement to FMLA leave?

Last week in Schaar v. Leigh Valley Health Services, Inc., the Third Circuit Court of Appeals allowed an employee to proceed with an FMLA claim when the evidence of incapacity was based on a combination of information from the health care provider as well as her own testimony. In this case, the plaintiff missed three days of work due to back pain and a urinary tract infection. The employer denied FMLA leave because the employee did not follow regular call-in procedures for the days she was absent. As an initial defense to the FMLA lawsuit, the employer claimed that the plaintiff never suffered from a SHC due to the minor nature of her aliments.

The plaintiff's doctor testified that with antibiotics and rest, her condition should have cleared up to the point where she could return to work in a day or two. The trial court dismissed her claim on summary judgment, concluding that she had not demonstrated three days incapacity. The Third Circuit reversed this decision, remanding the case for trial. In its decision, the court reviewed cases from several other federal Circuits concluding that lay testimony alone is enough to establish incapacity. Instead, the Third Circuit adopted a middle position, concluding that while lay testimony alone is not enough to establish incapacity, a combination of medical information and testimony from the employee is adequate to meet this requirement.

This case demonstrates the low burden for employees to prove a SHC under the FMLA. Even minor ailments can rise to the level of a SHC if the three days incapacity plus treatment criteria is met. In addition, the employee's own testimony can at least partially establish this incapacity. In most cases, employers would be better served by managing FMLA leave instead of looking for medical grounds to disqualify the employee from eligibility for leave.