Determining the Proper Standard of Proof for Incapacity Under the Family and Medical Leave Act

Abstract:     
Some of the most confusing provisions of the Family and Medical Leave Act (“FMLA”) involve “serious health conditions” and the standard of proof required to demonstrate the incapacity that is the hallmark of a “serious health condition” under the FMLA. Currently, there is a three-way split among federal circuit courts regarding the proper standard of proof to establish incapacity. In light of the broad coverage of the FMLA and the confusion surrounding these provisions in particular, Congress through amendment of the FMLA or the Department of Labor through a regulation should create a uniform standard. This Note argues that the medical-testimony-only standard advances the purposes of the FMLA and will be the best method to eliminate at least some of the problems surrounding these provisions.

Number of Pages in PDF File: 48

Keywords: FMLA, family and medical leave act, employment, incapacity, serious health condition, medical certification, medical testimony, testimony

JEL Classification: J29, J33, K39, K30, K19

Accepted Paper Series