Leave Policy/Compliance

Ask the Expert: Leave for Adult Son’s Recovery from Surgery

I have a question regarding taking leave for an adult son.  An employee’s son has to have back surgery.  He is not incapable of self-care (has a full time job, etc). However, after the back surgery he is going to need help with his recovery. Will this fall under the FMLA for her to take care of her adult son?

In general, an employee may not take FMLA leave to care for a son or daughter who is 18 years of age or older.

However, there is an exception if the child is age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence. “Incapable of self-care” means that the individual requires active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs).

ADLs include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing, and eating. IADLs include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc. “Physical or mental disability” has the same meaning as is defined by the ADA. The adult child’s medical condition must be both a “disability” under the ADA and a “serious health condition” under the FMLA.

In all instances, determinations under the FMLA depend upon all the facts of a particular situation. An employee requesting FMLA leave to care for an adult child must meet FMLA coverage and eligibility requirements, must provide his or her employer with notice of the need for leave, and must submit medical certification of a serious health condition if required by the employer.

So, the bottom line is that the son’s back surgery may be FMLA-qualifying for your employee, depending on how extensive it is. You may wish to check out this DOL fact sheet for additional information and examples: https://www.dol.gov/whd/regs/compliance/whdfs28k.pdf

I hope this information is useful to you, and we thank you for your inquiry. As always, we recommend consultation with a qualified local attorney familiar with the details of your specific situation.