There's good news for people who have to miss work because of Migraine or other headache disorders.
The burden on employees of certifying that they are too sick to work under the Family Medical Leave Act (FMLA) has just been made a little easier by the Federal Courts. In its first time looking at this issue, the United States Court of Appeal for the Third Circuit (covering Delaware, New Jersey, Pennsylvania and the Virgin Islands) recently held that in determining if an employee was too sick to return to work under the FMLA, the courts must listen to an employee's own word as to his or her illness.
In Schaar v. Lehigh Valley Health Services1, the 3rd Circuit held that an employee who had a doctor's certification of illness for part of her absence, and her own testimony that she was not well enough to return to work for the remainder of her absence, was protected from a retaliatory firing under the FMLA. Rachael Schaar was a medical receptionist who went to her doctor with a severe urinary tract infection. The doctor wrote her a note stating that she would be out of work for two days, and that it was "possible although very unlikely" that she might be unable to return to work even after three days. Schaar stayed home for a total of four days, two of which were previously scheduled and approved vacation days. She was fired six days after her return to work.
FMLA provides that for employers of 50 persons or more, employees are entitled to up to 12 work-weeks per year of unpaid leave to care for an ill family member or for themselves when they are ill. FMLA provides that employees cannot be fired, disciplined or have adverse action taken against them due to taking FMLA leave. They must have a doctor initially certify to their illness. In Schaar the 3rd Circuit reversed the Federal District Court for the Eastern District of Pennsylvania and held that lay testimony, in other words the employee's own testimony as to his or her medical condition, in combination with medical testimony, could establish that the illness was serious enough to justify the leave.
FMLA is a federal law, so the federal courts decide how it is to be implemented by employers in the various US states and territories. Every Circuit that has decided this issue has gone at least as far as the 3rd Circuit in Schaar: the 5th (covering Louisiana, Mississippi and Texas), 7th (covering Illinois, Indiana and Wisconsin), 8th (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) and 9th (covering Alaska, Arizona, California, Guam, Hawaii, Idaho, Mariana Islands, Montana, Nevada, Oregon and Washington). The 5th Circuit ( in Lubke v. City of Arlington2) and 9th Circuit (in Marchisheck v. San Mateo County3) have actually ruled that that lay testimony may be enough all by itself to establish the seriousness of the illness for FMLA purposes, even without a doctor's certification. The 9th Circuit in Marchisheck went so far as to say that the patient's testimony as to his incapacity should be listened too even if it is in conflict with the doctor's statements.
