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Worker–not just doctor–can prove incapacity

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in FMLA Guidelines,Human Resources

The FMLA allows up to 12 weeks of unpaid leave for eligible employees who work for covered employers to deal with their own serious health conditions.

Typically, employees must visit a doctor to establish the existence of an underlying medical problem that makes the employee unable to perform her job for three consecutive days.

But what if the medical provider merely says the employee may be off for one or two days? Does that mean that the employer can rely on that note and discipline the employee for the absence because she was not incapacitated for three days?

Not always. In some cases, the employee herself can provide the additional evidence that she was incapacitated.

Recent case: Rachael Schaar worked for Lehigh Valley Health Services as a medical receptionist. Two weeks before she was terminated, she experienced lower back pain, fever, nausea and vomiting. She went to a doctor, who diagnosed a urinary tract infection. He gave her antibiotics and a note that explained she would not be able to work for the next two days due to illness.

Schaar took the note, taped it to her supervisor’s door and went home.

She then went to bed and claimed to have stayed there for five days before feeling well enough to get up. Lehigh Valley terminated her and she sued.

Lehigh Valley argued that her absence wasn’t covered by the FMLA because her doctor said she was incapacitated for just two days.

But the 3rd Circuit Court of Appeals said Schaar could supplement her doctor’s note with her own testimony about the length of her illness. It ordered a trial. (Schaar v. Lehigh Valley Health Services, No. 09-1635, 3rd Cir., 2010)

Final note: You don’t have to take just the employee’s word. She must also have some medical evidence.

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