FMLA / Adult Child

mzihc

Hello, I am getting very differing responses elsewhere on this so am seeking your help.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

 

A parent may qualify for FMLA leave to care for a child. A child is defined  as a “son or daughter" as "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability."

 

In my situation the employee’s biological child is an adult. The employee has physician documents stating the child is/will be unable to take care of herself or be able to perform basic daily duties without assistance for 3 to 4 weeks. (This is after an extended hospital stay.)

 

I have been adamantly told that this doesn’t qualify for FMLA leave for the parent and others telling me it should. Yet my interpretation of the FMLA text seems to imply that it should qualify for FMLA leave -- unless there is more in the FMLA text somewhere defining what the “mental or physical disability” is or has to be??  (Such as the mental or physical disability must be something like downs syndrome or autistic or cerebral palsy, etc) Otherwise, it seems as though the child’s physical disability would qualify for the short term.

 

Help? Link to the full text? Anybody dealt with this before and what is your company’s policy?

HRforME

http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.113.htm

" (c) Son or daughter means 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.''
    (1) ``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). Activities of daily living include
adaptive activities such as caring appropriately for one's grooming and
hygiene, bathing, dressing and eating. Instrumental activities of daily
living include cooking, cleaning, shopping, taking public
transportation, paying bills, maintaining a residence, using telephones
and directories, using a post office, etc.
    (2) ``Physical or mental disability'' means a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual. Regulations at 29 CFR Sec. 1630.2(h), (i),
and (j), issued by the Equal Employment Opportunity Commission under the
Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define
these terms."

 

HRforME

and here is a link to the EEOC's definition of Disability: http://www.eeoc.gov/policy/docs/902cm.html  It came up when I googled the CFR reference for ADA in my previous response.

 

 

IT HR

Most likely based on the physician statement this will qualify for FMLA. 

mzihc

Thanks for the texts and links. I'm definitely still reading the text to mean the employee qualifies for FMLA. I read through the definition of disability and it seems clear enough based on the doctor's letter stating she won't be able to care for herself or normal daily activities.

cjg1234

Noticed this post in going through some others.  We are dealing with a similar situation currently.  An employee's daughter had complications during her pregnancy due to her diabetes and  has eclampsia (high blood pressure, swelling and potential of seizures).  This employee's daughter is 21 years old and the employee asked about taking FMLA to care for her daughter 2 weeks after her delivery.  Even though her daughter is 21, due to the serious health condition of her daughter, and recent court decisions on FMLA being denied on some adult child cases, we completed FMLA paperwork and sent the Certification to her physician.  This employee has now been off around 4 weeks and yesterday I received the Certification from the daughter's physician.  The physician stated "patient will need assistance with basic hygiene, travel and care for newborn".  FMLA cannot be taken for a grandchild so that reason is not valid.  The physician also stated the beginning and ending dates of period of incapacity are 09/21/10 + 8 weeks postpartum.  Help.  What would you do in this situation? 

dhall111

[quote user="HRforME"]

    (2) ``Physical or mental disability'' means a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual. Regulations at 29 CFR Sec. 1630.2(h), (i),
and (j), issued by the Equal Employment Opportunity Commission under the
Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define
these terms."

 [/quote]

 

this is the part you really need to focus on.  Does the child have a disability as defined by ADA?  If it's a simple recuperation from a surgery for a non-ADA related reason, then I'd say no. 

 Look at it this way . . . would the child qualify for ADA absent the actual need for the leave?  If the answer is no, then they are not disabled under ADA and therefore not eligible for FMLA. 

TXHRGuy

[quote user="dhall111"][quote user="HRforME"]

    (2) ``Physical or mental disability'' means a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual. Regulations at 29 CFR Sec. 1630.2(h), (i),
and (j), issued by the Equal Employment Opportunity Commission under the
Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define
these terms."

 [/quote]

 

this is the part you really need to focus on.  Does the child have a disability as defined by ADA?  If it's a simple recuperation from a surgery for a non-ADA related reason, then I'd say no. 

 Look at it this way . . . would the child qualify for ADA absent the actual need for the leave?  If the answer is no, then they are not disabled under ADA and therefore not eligible for FMLA. 

[/quote]

I'm not sure it's that easy.

Take a look at the definitions for disability specified in the FMLA reg:

(h) Physical or mental impairment means:

(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
(i) Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

The new mother is unable to take care of herself.  "caring for oneself" is a major life activity.  The child's doctor says she needs help with hygiene, oneo f many forms of caring for herself.  If the child is also on FMLA leave from her own job, that suggests she cannot "work," another major life activity.  Either is sufficient.

The doctor says the child will need help with travel.  Does that mean she has difficulty "performing manual tasks" such as carrying her baby to the car or seating herself in the car or getting her child out of the car?  Can she walk ok?  If she's had a C-section with a difficult recovery, these are all possible, in addition to lifting restrictions, bed rest, and other "substantial limitations."