September 24, 2017 | Category: Employment | Tags: , , , ,

What Employers Need To Know About FMLA Leave for Adult Children

As any parent will tell you, your children will be your children, whether they are five or forty-five. Employers do not hesitate to grant Family and Medical Leave Act (FMLA) leave to employees caring for their minor children, but what happens when the leave request is to care for their adult children? If this just gave you pause, you are not alone. Employers are less familiar with these provisions of FMLA, but they are important to know and understand.

How FMLA Defines Leave to Care for Children

FMLA grants eligible employees to take up to twelve (12) weeks of leave in a 12-month period for certain family and/or medical reasons. One of those reasons includes a parent taking care of his/her son or daughter. Son or daughter is defined as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or 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.” The adult must require active assistance to provide daily self-care in three or more activities of daily living or instrumental activities of daily living (i.e. grooming, cooking, eating, shopping, etc.). Further, FMLA adopts the definition of disability from the Americans With Disabilities Act (ADA) (i.e. a physical or mental impairment that substantially limits one or more of the major life activities of an individual). These provisions allow employees to utilize FMLA leave to provide needed care to their children regardless of age.

The Department of Labor issued an Administrator’s Interpretation in 2013 to provide clarification on this issue. Now, with this bit of background knowledge, let us review some hypothetical scenarios where this issue arises.

Hypothetical #1

A long-time employee requests FMLA leave to care for her adult daughter who is undergoing treatment for thyroid cancer. The employee is eligible and the company is a covered employer. The company provides her with FMLA paperwork, which she completes and returns, but the question regarding leave duration is left blank. The company does not ask for her to fill it in because the certification stated that her daughter would need assistance through at least July and the company believes that the employee will not return to work at the end of her FMLA leave. As such, the company hires someone to fill her position after she has been gone about a month. Much to the company’s surprise the employee reports to work at the end of March, but is told that she no longer has a job.

Did the company mess up? YES. The long-term employee’s daughter meets the definition of “daughter” under the FMLA regulations. She is the employee’s biological daughter who is disabled and incapable of self-care. The fact that she is over the age of 18 does not matter. The employee need to take FMLA leave as her daughter has a serious health condition and requires care because of it. The employee’s leave is protected under FMLA and she should not have been replaced.’

Hypothetical #2

John works in the company’s accounting department. Unfortunately, his daughter is in a car accident in which suffered two broken femurs, a small hole in her lung, and a small hole in her bladder. John requests FMLA leave to care for his daughter. He is eligible for such leave and the company is a covered employer. Although he was out for approximately one week caring for his daughter, the company denies that his leave is FMLA eligible because the condition was temporary and, therefore, not a disability. A few weeks later, John was fired and replaced.

If John filed claims for FMLA interference and retaliation, would he prevail? YES. His daughter meets the definition of “daughter” under the FMLA regulations. She is unable to perform activities of daily living and has an ADA and FMLA disability. Her accident made her incapable of self-care (based on her condition at the time FMLA commenced) and had a serious health condition. John needed to care for his daughter due to her serious health condition.

Employers must scrutinize the facts related to an employee’s need for FMLA leave to care for an adult son or daughter. It is important to keep the ADA’s broad definition of disability in mind along with the individual’s condition at the time FMLA leave is requested.

Do you know all your obligations as a Nevada employer? The Nevada Association of Employers (NAE) is here to help. Our staff of HR professionals is equipped with the knowledge and experience to assist employers in navigating the often complex world of employment-related statutes and regulations. Contact NAE today!

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