Yesterday’s Advisor offered guidelines for the tricky territory of FMLA leave for children 18 and older. Today, concrete examples from the DOL of how this plays out, plus an introduction to FMLA Complete Compliance.
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My 20-year-old daughter has been put on bed rest because of her high-risk pregnancy. I am the only one available to care for her. Can I take FMLA leave for this reason?
Maybe. In order to take FMLA leave to care for your adult daughter, she must be incapable of self-care due to a disability and you must be needed to care for her because of a serious health condition. While any incapacity due to pregnancy will be a serious health condition for FMLA purposes, pregnancy itself is not a disability. However, pregnancy-related impairments may be considered disabilities if they substantially limit a major life activity.
If your daughter has a pregnancy-related impairment, such as pregnancy-related sciatica, that substantially limits one or more of her major life activities, such as walking or lifting, then she has a disability. If she is incapable of self-care due to that disability (e.g., she needs active assistance in cooking, cleaning, and shopping), then she qualifies as an adult daughter under the FMLA. In such circumstances, assuming you are an eligible employee, you will be able to take FMLA-protected leave if you are needed to care for her.
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My 23-year-old son with Down syndrome lives with me and goes to a community resource program during the day. When he is ill, he must stay home and cannot be left alone. I am an FMLA-eligible employee. May I take leave if he is ill and cannot go to his daytime program?
Yes, if your son requires active assistance or supervision to provide self-care in at least three ADLs or IADLs because of his disability and his illness meets the definition of a “serious health condition” under the FMLA.
My 40-year-old daughter has cerebral palsy. Can I assume her condition meets the definition of a serious health condition and that I can take FMLA leave to care for her?
The determination of whether an impairment qualifies as a serious health condition must be evaluated on a case-by-case basis, and can vary between individuals with the same disability. While cerebral palsy is recognized to be a disability, your daughter must also be incapable of self-care because of her disability and her need for care must result from a serious health condition as defined in the FMLA.
My adult daughter has a disability, epilepsy, which is controlled by medication. Can I take FMLA leave to care for her if she is admitted to a hospital overnight for observation due to a car accident?
No. Although your daughter has a disability, she is not currently incapable of self-care because of that disability. Her ability to care for herself (i.e., her ability to independently perform activities of daily living) means she does not qualify as a “daughter” for leave purposes under the FMLA. Even if your daughter suffers from a brief period of incapacity and receives inpatient care for a night due to the car accident and therefore has a serious health condition under the FMLA, you would not be entitled to FMLA leave to care for her as she does not meet the FMLA definition of a “daughter.”
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About Your Lead Author:
Susan Schoenfeld, JD, is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, and sexual harassment. She provided training and counseling to corporate clients and litigated cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. Prior to private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor (DOL) in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for the DOL. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.
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Has there been any litigation or other guidance on how to evaluate whether an adult child is incapable of self-care? Can such a child be intermittently incapable of self-care?
What about psychological care and comfort of a child? For example, if an adult child has cancer and is hospitalized, and the parent is not necessarily required to care for the child since medical staff is present, won’t FMLA cover psychological care and comfort? Just the sound of a parent’s voice to a child, or even the child’s knowledge of the parent’s presence can be of extraordinary value to the child’s recuperative potential.