FMLA-Grown Child

mrsbowden

If an ee's grown child (age 25) is having brain surgery. Should the employee be granted FMLA to take care of her even though her child is grown? I think so..but myself and another supervisor are disagreeing. She doesn't think the EE needs FMLA b/c her child is grown?

Balloonman

Do they expect a possibly single 25 year old to take care of themselves after brain surgery? Believe me I am the first one to say "fire them!" however I do not think I would have a problem with this request. I am not getting soft, and I am not an FMLA expert, but I also found out Monday that my brother in law, who's son will turn 1 next month, has ALS. Funny thing my sister used up most of her FMLA leave with the birth of her child. She has to return back to work by 9/8 or they will terminate. I am not sure how upset she is, but the fact is she is probably not what I would consider a good employee........and they need to stick by the policy.
Oh well, but hey a kid having brain surgery does not happen every day, adult or not. Grant the leave.
My $0.02 worth.
DJ The Balloonman

NaeNae55

This is a direct quote from FMLA LEAVE: A WALK THROUGH THE LEGAL LABYRINTH which I downloaded from this site:

Child. A child is either a biological child, adopted child, foster child, stepchild, legal ward, or the child for whom the employee is standing 'in loco parentis'. 'In loco parentis' is a Latin term that means "in place of the parents." In other words, the employee has the day-to-day responsibility of taking care of and financially supporting the child. The child must be under age 18, or over 18 but incapable of caring for herself due to a mental or physical disability.

Now you need to determine if the 25 year old qualifies and you will have your answer.

Good luck!

Balloonman

"or over 18 but incapable of caring for herself due to a mental or physical disability". Would a 25 year old post brain surgery be considered incapable for caring for herself?
I am curious.
DJ The Balloonman

NaeNae55

I am sure she is incapable of caring for herself, but the sticky part comes, I think, from the financial end. Is mom and dad financially supporting the child? I think a company could make an arguement for refusing fmla in this instance, but I would hate to face a jury and say I made this poor kid face this all alone because she was not completely financially dependent upon mom and dad (most children of this age would need at least some help from their parents financially if they were going to be off work for long).

In our company, we would probably give it just on the basis of the seriousness of the condition (assuming child is not married and has other help).

POPEYE

A similiar scenario was brought up a year or so ago at a seminar I was attending and the presenter replied (and I am paraphrasing):
Even though it may not be 100% by the regulations, if you are in doubt about granting or denying leave, put yourself in the requester's shoes and if you feel like you should have the leave, GRANT IT.

Don D

No pun intended, but sounds like a no-brainer to me. If my 25 year old has brain surgery I assume she/he will be incapable of caring for herself, at least for awhile and I imagine the leave request would be approved. I can't imagine denying it on any basis. And I certainly would approve it for others in this circumstance. The problem I have had approving things in the past has been like with a woman whose adult child is ill or has delivered a baby and is temporarily in need of assistance and they have a family where she is who can and should be able to take care of the needs of the person. I opted to deny one like this when an ee wanted to go south to Baton Rouge for 3 weeks to 'be with' her single daughter who had delivered. But with the brain surgery I agree with granting it. My problem has been compounded by the fact that a doctor will typically sign off on anybody's 'need to be there' and that puts me in a pickle. I do think the brain surgery would meet all definitions with this adult child.

Whatever

I agree with you.

LindaS

Agree with Don - I would approve the request.

Balloonman

I was thinking about this driving in to work today (Man I need a life). Okay if it really should not be FMLA tell her so, but approve a leave of absences. Plain and simple you will lose this employee if you do not.
My $0.02 worth.
DJ The Balloonman

awilliams

Just a reminder: the FMLA sets out the legal minimum that an employer must provide - but employers are always free to go above and beyond the requirements of FMLA and voluntarily provide leave. Keep in mind, however, that if a similar situation comes up, you will need to be as flexible, or face being charged with discrimination.

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

mrsbowden

Thanks to all for your responses. I too agree leave should be granted...but this senerio was presented to me b/c there is an ER who is denying this request..personally I think he is asking for trouble and I too would want to take care of my own child..any person with brain surgery is obviously not capable of taking care of themselves.

Good point..FMLA is the minimum...and as far as I know an ER has not been dragged to court b/c they gave more than the min. Well so long as it was not a discrimination case.

Thanks to all for your great responses and thoughts and legal imput xclap

Rockie

Look at it this way, also. You would grant for a spouse with a serious illness such as brain surgery....I believe a child with this type of surgery would qualify for FMLA. I would not want to face this one down in court. I'd go on the path of least resistance, even if it meant giving more than I legally had to.

WO

Greetings All, I read the forum weekly but have not responded in some time.

I struggle with this one often, not the brain surgery, the FMLA for a grown child. The regs say: under 18 or over 18 incapable of self care due to a mental or physical disability. I have focused on the definition of disability, a disability is permanent not temporary. So therefore not eligible for the temp disability following birth or surgery etc. So I would have to deny the FMLA and go with allowing leave for such a serious family need. However it would not qualify for FMLA or even our sick leave policy which emulates "incapable of self care due to mental or physical disability." I have had some unhappy employees over that one.

In the serious case of brain surgery I would be desirous of granting FMLA but what happens to consistently applying the policy when it is denied for another parent of a grown child?

So let me have it am I too tough? or cruel and heartless.

Leslie

I don't know WO - as long as you have other leave you can grant I don't see that as being cruel or heartless. My problem is all I have per policy is FMLA - period. So I find myself stretching the envelope all the time making situations fit...it's a pickle but I've been managing it for eight years. So far so good. And for this one I would grant the FMLA.

System

[font size="1" color="#FF0000"]LAST EDITED ON 08-30-03 AT 07:39AM (CST)[/font][p]Yes. I find that you are cruel and heartless. Just kidding of course. But I do find that you are a bit too anal in your search for the perfect definition of words like disabled. The disability definition you have latched onto is an ADA definition rather than an FMLA definition. One need not reach over into another hat of laws and take from it a definition and place it in another hat and try to make it work for that hat too. And if you DO feel comfortable doing that, I assume you do know that the ADA definition is so loosely crafted that the argument goes on as to how long permanent is....some suggest a year or longer, others don't. And are we forgetting that the designation of FMLA is as much for the employer's 'good' as it is the ee's? He is going to be off. Counting those days as FMLA starts the FMLA usage clock and protects the employer as well. Now, if your company has no other means of granting the time off and you still refuse the FMLA in this circumstance, I return to my opening remark of your being cruel and heartless, with the disclaimer removed.

Edit: Any surgeon will tell you that brain surgery might/will/is likely to/could have lingering complications that last a year or longer, perhaps ten.

WO

I dont disagree that the brain surgery is definitely serious and may result in long term disability. Just that on less severe issues like an employee wanting to visit and care for an adult child who has just given birth. The new mother may have temp. disability due to child birth but is not FMLA eligible for our employee due to being over 18 and not disabled. Think about every employee who becomes a grandparent taking 12 weeks off!

Back to being anal. When defining "physical or mental disability" the FMLA regs do refer to the EEOC definition under the ADA of a disability. See 29 CFR 825.113 (c) (2). To top it off the state of Washington used the same language when they recently expanded sick leave eligibility for employers who offer sick leave.

deniseE

Perhaps the spirit of the FMLA Act should be considered in this situation. The desire was to attempt to balance the needs of an individual trying to care for family with the needs of an employer maintaining a working environment. It is designed to protect the employee from discharge while ensuring the employer that it does not have to be without the employee for an undetermined amount of time.

These are very often case by case decisions. Is the employee a good worker? Will allowing her to take time to care for her child make her a better employee in the long run? How effective will she be on the job if she's contstantly thinking about her child in surgery, recovery?

Do we stop being parents the day the child turns 18? We all know that is not true!! Nor do we stop being sons/daughters when our aging parents need us.

This is part of our human dynamic and exactly what FMLA is designed to protect.

Margaret Morford

WO,

I'm siding with you. The definition of FMLA is very broad already. I would advise against self-widening. (I made that word up, but it should be a word and suits this situation.) However, I would immediately implement a Personal Leave Policy and make this person the first person to qualify. Explain to them that while the law doesn't cover them, you are implementing a policy to cover them. You get to do the right thing without broadening FMLA for your organization.

I have a Personal Leave Policy I'll be glad to furnish to the original poster. I think I even have a form they can fill out requesting the leave. My policy lets the organization review each request on a case-by-case basis taking into account circumstances, individual performaance and business needs at the time of the request. E-mail me if you want the Policy and Form.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

System

So what's the point of creating an entirely new policy to allow this sort of leave if you can already choose to grant it under FMLA. I see no wisdom in developing an entirely new set of rules providing safety nets when this one already will suffice and the rules are already in place. FMLA will fit rather nicely for this situation, offers job protection for the employee and runs the employer's 'absence' clock. The fewer wheels we invent, the fewer tires we have to keep air in.

PS: 'Self Widening' is a bio-physics term referring to the effect of chocolate on the hips. x:-)

mwild31

Okay - I'm not an expert on FMLA - so bear with me...

I know that the employer grants the FMLA, but don't we do so with the caveat of the employee turning in Certification of Health Care Provider paperwork? This gives the provider the opportunity to state whether or not the patient's condition falls under the 'serious health condition'. My thinking on this comes from the "physical or mental disability":

1)How can the employer determine whether or not the child over the age of 18 has a "physical or mental disability" without the provider's input?

2)Without the provider's input, how do you know how long to grant the leave (i.e. brain surgery sounds horrifyingly awful, but is it a routine procedure - if there is one - or is the recovering time of a short duration - at least to the point of being classified as a 'physical disability').

Please help straighten me out x:-)

juju

In a case like this, we would definitely provide the employee with FMLA forms for the adult child's doctor to complete. The form would need to be completed for us to grant the leave. Our form has a special section concerning whether care is needed for an immediate famliy member. If the doctor stated that the patient needed a parent to care for them, we would grant the leave as FMLA.

mwild31

That's what I would do as well. If the doctor didn't sign off, then I would grant personal leave.