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

48 Pages Posted: 12 Jun 2011 Last revised: 23 Jan 2012

See all articles by Leslie A. Barry

Leslie A. Barry

affiliation not provided to SSRN

Date Written: June 10, 2011

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.

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

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

Suggested Citation

Barry, Leslie A., Determining the Proper Standard of Proof for Incapacity Under the Family and Medical Leave Act (June 10, 2011). Iowa Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1862259

Leslie A. Barry (Contact Author)

affiliation not provided to SSRN ( email )

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