FMLA - definition of son/daughter and inability for self-care
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I have a question relating to when a son/daughter is over 18 years of age but suddenly finds themsleves unable to provide self care on an intermittent basis due to an injury or if due to medically necessary treatments. I am confused about if over 18 and unable to provide self care is meant to imply a permenant ongoing physical incapacity for self care or if it can apply to a shorter term need for supervision and assistance with daily needs connected with a serious health condition or inability triggered by periodic treatments of a serious health condition? Can any clarify for me?
Comments
Great question -- I think a lot of people misunderstand this one . . . the adult son or daughter has to be BOTH incapable of self care AND disabled (as defined by ADA). The final FMLA regulations say:
``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 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.
The final FMLA regulations (preamble to the rule) give this example:
[I]f a 25-year-old son breaks a leg in a car accident and is expected to recover in a short period of time, he would not normally be incapable of self-care because of a physical or mental disability. The proposal clarifies that any leave the parent took to care for the adult child would not be FMLA-protected if the disability standard is not met. If the 25-year-old later suffered a stroke that left him with substantial and permanent mobility
impairments, he likely would meet the regulatory standard. At that point, any subsequent leave the parent took to care for the adult child who is incapable of self-care due to a physical or mental disability would be protected by the FMLA. However, that protection would not extend retroactively to the parent's leave taken when the 25-year-old son had only a broken leg.
Given the above response of "incapable of self care due to a disability", what about a situation where a child over 18 is about to start treatment & chemo. Condition is listed as life long and since chemo can make some incapable of self care for various periods of time and it appears that chemo & aggressive treatments are expected, is it safe to conclude that FMLA applies to leave taken by the parent currently to provide transporation to son/daughter and care after the treatment. Since this is not a short term condition, I assume FMLA applies even though the son/daughter may not continually be incapable of self care. I am looking at this correctly?
Given the above response of "incapable of self care due to a disability", what about a situation where a child over 18 is about to start treatment & chemo. Condition is listed as life long and since chemo can make some incapable of self care for various periods of time and it appears that chemo & aggressive treatments are expected, is it safe to conclude that FMLA applies to leave taken by the parent currently to provide transporation to son/daughter and care after the treatment. Since this is not a short term condition, I assume FMLA applies even though the son/daughter may not continually be incapable of self care. I am looking at this correctly?[/quote]
Not exactly. To qualify as incapable of self care for a child over 18, the care must require active assistance or supervision to perform three or more activities of daily living and the disability must limit one or more major life activities as defined by ADA AA. There has been at least one court that has ruled that the impairment may be of modest duration to be substantially limiting for the purpose of FMLA. (Navarro v. Pfizer 2001) However from what you are describing it would appear that it does not meet the definition of FMLA.