In Schaar v. Lehigh Valley Health Servs., Inc., No. 09-1635, the Third Circuit addressed a question of first impression of whether a combination of expert and lay testimony can establish that an employee was incapacitated for more than three days as required by FMLA regulations.
In vacating the district court's denial of plaintiff's suit against her former employer for violation of the FMLA, the court held that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony.
Here, the doctor wrote that the plaintiff was incapacitated for two days because of her illness due to her urinary tract infection. The doctor's medical opinion combined with plaintiff's lay testimony that she was incapacitated for two additional days, is sufficient to show that a material issue of fact exists as to whether the plaintiff suffered from a serious health condition.