Family Medical Leave Act to Care for Adult Children
by
Joseph C. Maya on Jun. 21, 2017
Employment Family Medical Leave Act (FMLA) Employment
Summary: A blog post about changes to the FMLA that allow employees with adult children that are disabled or incapable of self-care due to physical or mental disability to care for them.
Contact the experienced employment law attorneys at Maya Murphy, P.C. today at (203) 221-3100 or JMaya@Mayalaw.com
The Family Medical Leave Act (FMLA), entitles an eligible employee to take up to twelve workweeks of job-protected, unpaid leave during a twelve-month period to care for a “son or daughter,” with a serious health condition. A question remains however as to what a “son or daughter,” entails for an employee to be eligible for FMLA leave.
In general, an employee may not take FMLA leave to care for a son or daughter who is eighteen years of age or older. However, an employee may take FMLA leave to care for a biological, adopted, or foster child, a stepchild, a legal ward, or a child to whom the employee stands in loco parentis, who is eighteen years of age or older and is: (1) disabled, and (2) incapable of self-care because of the mental or physical disability at the time that FMLA leave is to commence. Under the FMLA, disability is defined as a mental or physical impairment that substantially limits one or more of the major life activities of an individual. The FMLA utilizes the standard definitions of disability and major life activity from the Americans with Disabilities Act.
Under the Americans with Disabilities Act, a major life activity includes, but is not limited to, activities such as caring for oneself, performing manual tasks, seeing, eating, standing, reaching, breathing, communicating, and interacting with others, as well as major bodily functions of the brain or immune system, or normal cell growth. When determining the presence of a disability, both the Americans with Disabilities Act and the FMLA do not allow the consideration of the use of medical supplies or medications to lessen the effects of the disability, other than the use of ordinary eyeglasses or contact lenses. It should be noted that the disability of the child (son or daughter), does not have to have occurred or have been diagnosed prior to the age of eighteen. The onset of any disability may have occurred at any age for the purposes of the FMLA.
Under the FMLA, in order for an adult son or daughter with a disability to be incapable of caring for themselves, such means that the individual requires active assistance or supervision to provide daily self-care in three or more, “Activities of Daily Living,” or, “Instrumental Activities of Daily Living.” “Activities of Daily Living,” include adaptive activities such as caring appropriately for a person’s grooming and hygiene, bathing, dressing and eating. “Instrumental Activities of Daily Living,” include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using the telephone and directory, using the post office, etc. The FMLA makes clear that the above lists are not exhaustive and additional activities may also be considered in determining whether the adult child is incapable of self-care. (www.dol.gov/whd/regs/compliance/whdfs28k.pdf).
The determination of “incapable of self-care” is fact-specific and must be made based on the individual’s condition at the time of the leave. Whether an adult child needs active assistance or supervision in three or more “Activities of Daily Living,” or, “Instrumental Activities of Daily Living,” must be determined based upon all relevant factors, including, for example, the current effect of any episodic impairment. While “disability” must be broadly construed under the ADA, in order to qualify as an adult “son or daughter” under the FMLA, an individual must also be “incapable of self-care” because of the disability. (www.dol.gov/whd/regs/compliance/whdfs28k.pdf).
After the determination that an adult son or daughter is incapable of self-care because of a disability, the employee requesting leave must also show that the son or daughter has a serious health condition and the employee needs to take FMLA leave to provide care for that serious health condition. The standard FMLA analysis regarding an eligible employee would then commence for leave determination.
Under the FMLA, a serious health condition is any illness, injury or physical/mental impairment that involves inpatient or continuing treatment by a healthcare provider. 29 C.F.R. 825.113-115. Although an adult child’s serious health condition may not be directly related to his or her disability, the same condition must satisfy both the Americans with Disabilities definition of disability, and the FMLA’s definition of a serious health condition.
Finally, the “need to care provision,” of FMLA qualifying leave may be satisfied if the child is unable to care for his or her own basic medical, hygienic or nutritional needs or safety, or is unable to transport themselves to the doctor, because of the serious medical condition.
If you are an employer and are seeking compliance with the FMLA, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.
Source: dol.gov
