Wednesday, March 17, 2010

Whose opinion counts for determining “incapacity” under the FMLA?

The FMLA defines serious health condition as “an illness, injury, impairment, or physical or mental condition that involves … continuing treatment by a health care provider.” The FMLA’s regulations define “incapacity” as the “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” The regulations further define a “serious health condition involving continuing treatment by a health care provider” as requiring a “period of incapacity of more than three consecutive, full calendar days.

How does an employee establish incapacity for three or more days? Is an employer required to take the employee and his or her word, or can the employer require the employee to support the claim of incapacity with medical evidence? Courts take three approaches.

Some courts hold that an employee’s own statements, without any medical support whatsoever, are sufficient to establish incapacitation to support a claim for FMLA leave. One court, for example, even allowed an FMLA claim to proceed when an employee’s statements about his health directly contradicted his doctor’s note, which permitted him to return to work without restrictions.

Other courts, including Schaar v. Lehigh Valley Health Services, Inc., a recent case from the Third Circuit, hold that an employee can support a claim of incapacity for FMLA-leave purposes with a combination of the employee’s own statements in combination with documentation from a health care provider. In the Schaar case, for example, the employee supported her claim for an FMLA entitlement with a doctor’s note, which said that she was incapacitated for two days, along with her own statements that she was incapacitated for another two days.

Both of these views give employees a tremendous amount of latitude to game the system by claiming FMLA-leave that may not be medically supported. Luckily for Ohio employers, Ohio’s district courts subscribe to the most restrictive view, that an employee can establish that he or she was required to be absent from work only upon the production of “evidence showing that a health care provider made a professional assessment of his condition and determined, based on that assessment, that an extended absence from work was necessary.”

Regardless of the legal standard employed in determining whether an employee is “incapacitated” and therefore eligible for FMLA leave, your best defense against potential liability is to use the FMLA’s medical certification process to verify the employee’s qualification for the statutory leave.

And, on a totally unrelated topic, in honor of St. Patty’s day here’s a very cool picture I took of O’Neill’s Pub in Dublin.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or

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