WWYLD – 03/16/18 – Time Off Under FMLA to Care for an Adult Child
March 17, 2018 | Curran Leahy-Lonigro, Esq.
Question: An employee is requesting time off to be with her adult daughter who is having a procedure done at the hospital. Could the employee be entitled to FMLA leave?
This employee could be entitled to FMLA leave, but the employer may request additional information to definitively determine entitlement. The employee’s eligibility for FMLA leave will depend on the following factors: 1) whether the employee’s adult child has “serious health condition” 2) whether the employee’s adult child is “incapable of self-care;” and 3) whether the employee is “needed to care for” the child.
To be eligible for FMLA leave, an employee must work for a covered employer and:
- have worked for that employer for at least 12 months; and
- have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and,
- work at a location where at least 50 employees are employed at the location or within 75 miles of the location.
1) Serious Health Condition
An eligible employee is entitled to up to a total of 12 workweeks of unpaid leave in a 12-month period:
- for the birth of a son or daughter, and to care for the newborn child;
- for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
- to care for an immediate family member (spouse, child, or parent — but not a parent “in-law”) with a serious health condition; and
- when the employee is unable to work because of a serious health condition.
A “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:
- any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
- a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
- any period of incapacity due to pregnancy, or for prenatal care; or
- any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
- a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
- any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).
2) Incapable of Self Care
A “child” 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 18 years of age or is 18 years of age or older and “incapable of self-care because of a mental or physical disability” at the time FMLA leave is to commence.
An individual will be considered “incapable of self-care” for FMLA leave purposes if he or she requires active assistance or supervision in three or more activities of daily living or instrumental activities of daily living.
- The FMLA regulations include the following as examples of “activities of daily living”:
- Caring appropriately for one’s grooming and hygiene
- The FMLA regulations provide the following examples of “instrumental activities of daily living”:
- Taking public transportation
- Paying bills
- Maintaining a residence
- Using telephones and directories
- Using a post office
3) Needed to Care For
To be eligible for leave, the employee will be “needed to care for” her daughter. The employee would be considered “needed to care for” her daughter if the daughter is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or unable to transport herself to the doctor/treatments, because of a serious health condition. “Needed to care for” also includes providing psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient care or home care.
With regard to #1 and #2, the employer can ask that the employee obtain documentation from the daughter’s medical provider that answers the following:
- Dates associated with the care the daughter requires;
- Appropriate medical facts about the condition;
- A statement of the care the daughter requires
With regard to #3, it is permissible to ask the employee for a brief explanation of why the employee is needed to care for her daughter. This information would come from the employee herself and does not need to be supported by a request/recommendation from a medical provider. If this information was shared in previous communications, those communications between the employee and the employer could be adequate to support #3.
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