What Does It Take for an Employee to Establish a Serious Health Condition Under the FMLA? It Depends on Where You Are Doing Business
A recent decision by the U. S. Court of Appeals for the Third Circuit highlights the differences in the evidence that courts will permit a plaintiff to use to prove that he or she had a serious health condition in suits claiming a violation of the FMLA. In Shaar v. Lehigh Valley Health Services, Inc., the issue before the Court of Appeals was whether the trial court properly granted the defendant/employer summary judgment on the basis that the plaintiff had not proven that she had a serious health condition for which the employer should have granted leave.
The plaintiff had experienced symptoms for which she visited a physician. The physician diagnosed her illness as a urinary tract infection with fever and lower-back pain, and prescribed a certain diet and medications, including an antibiotic to be taken for three days. The physician wrote a note advising the employer that the plaintiff’s illness prevented her from being able to work for the next two days — Wednesday and Thursday. This was her only visit to the physician in connection with this illness. In deposition, the physician testified that it was possible, although very unlikely, that the plaintiff would not be able to return to work after three days. The plaintiff taped the note to her supervisor’s door and left.
As coincidence would have it, the plaintiff was scheduled for vacation that Friday and the following Monday. She returned on Tuesday and informed the supervisor that she had been sick all weekend, but never requested FMLA leave, nor did she request that the paid vacation be converted to sick leave. She was subsequently terminated for a variety of reasons including not calling off from work for the two days she was ill, as stated in the physician’s note.
A “serious health condition” is defined by statute and regulations as, among other things, an illness of more than three consecutive calendar days that involves continuing treatment by a health care provider. Plaintiff testified that she remained incapacitated from Wednesday through at least Sunday. The trial court granted summary judgment to the employer on the basis that her incapacity for more than three consecutive days had to be established by medical evidence, and held that she could not rely on her own lay testimony.
On appeal, the Third Circuit noted that it had not previously decided this issue, and surveyed the other circuits, finding two different approaches being employed. It noted that all of the circuit courts that had addressed the issue found that lay testimony can create a genuine and triable issue of fact as to whether a plaintiff had a serious health condition. The Fifth and Ninth Circuits have found that lay testimony alone can be sufficient to satisfy incapacity. The Eighth Circuit found that the lay testimony of the plaintiff, combined with some medical evidence, can be sufficient to create a genuine issue of material fact making summary judgment inappropriate. The Third Circuit chose to adopt the view of the Eighth Circuit, requiring at least some medical evidence, which can be supplemented by lay evidence to create a triable issue of fact.
Several circuits have yet to decide the issue, and one or more could conceivably adopt yet a third approach, by holding that only medical evidence can establish the plaintiff’s serious health condition. Until those courts rule on this issue, employers who do business in those circuits must decide how they will proceed in cases where the medical evidence is not sufficient on its own to establish the requisite serious health condition. Of course, employers doing business in multiple circuits also must be careful to adhere to the holdings of the courts of appeals in each circuit in which they do business.
Newly Enacted HIRE Act Provides Tax Incentives to Create New Jobs
On March 18, 2010, President Obama signed into law the Hiring Incentives to Restore Employment (HIRE) Act. The bill had passed in House of Representatives on March 4, 2010 by a vote of 217 to 201, and had passed in the Senate on March 17, 2010 by a vote of 68 to 29.
One of the key features of the HIRE Act is the tax incentives provided to employers who hire and retain new employees. The Act exempts qualifying employers from paying the employer share of Social Security employment (payroll) taxes (approximately 6.2 percent of the employee’s wages, up to a maximum of $6,621) for wages paid in 2010 for any new employee hired after February 3, 2010 and before January 1, 2011. In order to qualify, the employee must have previously been unemployed, and the hire cannot replace another employee of the employer. Additionally, as an incentive for employers to retain these new hires, the Act provides qualifying employers with a $1,000 income tax credit for every qualifying new employee that they continue to employ for 52 weeks.
A qualifying employer is any employer other than a federal, state, or local government entity or instrumentality.
In addition to its job-creation incentives, the HIRE Act contains several other interesting features, including the following:
- The extension of the increased allowances for small-business expenditure write-offs, which will remain at a maximum of $250,000 for capital expenditures and purchases of new equipment incurred during 2010.
- Enhanced reporting requirements for foreign financial institutions with U.S. accountholders. This provision is designed to eliminate the use of foreign financial institutions, foreign trusts, and foreign corporations as tax shelters.
- Various highway and infrastructure projects and allocations, school construction, energy conservation, and renewable energy projects and programs.
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Authors
Laurence Arnold
San Francisco, California
415.984.9819
[email protected]
Yonaton Aronoff
New York, New York
212.338.3413
[email protected]