Caring for an Autistic Child
davids
427 Posts
We have an employee who has a son with autism. The son is middle school age and appears to be high-functioning. However, the child occasionally acts out or runs away from school. The school contacts the employee about once each week asking for her assitance to calm the child or help find the child when he runs away. The employee has provided medical certification and we have designated her leave to care for the child as FMLA.
We may be splitting hairs too fine, but here is the question. It seems that when she has to help calm the child, she is providing psychological comfort which is covered by FMLA. However, when she is taking time off to find the runaway child, its debatable (and, in fact, we have spent a lot of time debating the issue). So, the easy and, perhaps, humane approach is to not split hairs and just designate all of the leave as FMLA; but I am seeking opinions on a more technical level; putting the emotional response aside. What do you all think?
We may be splitting hairs too fine, but here is the question. It seems that when she has to help calm the child, she is providing psychological comfort which is covered by FMLA. However, when she is taking time off to find the runaway child, its debatable (and, in fact, we have spent a lot of time debating the issue). So, the easy and, perhaps, humane approach is to not split hairs and just designate all of the leave as FMLA; but I am seeking opinions on a more technical level; putting the emotional response aside. What do you all think?
Comments
Here is the potential problem I see with counting those absences as FMLA leave: What happens when the employee runs out of leave sooner than she should have and is terminated? Would she be able to argue that because you improperly counted the absences under the FMLA, she still had leave left to her and should not have been terminated?
This is an issue I have pondered before and I'm not sure I have an answer. I would be interested in seeing other people's responses.
Julie Athey
Author - FMLA Compliance: Practical Solutions for HR
Author - HR Q&A: Family and Medical Leave Act
Editor - FMLA Compliance Bulletin
Could an argument be made that the child running away is simply a symptom of their condition? And if so, aren't symptoms covered?
This idea assumes, of course, that the parent would present the situation to the employer in that light, and not as if it is simply a case of a child running away (which would not be covered).
Halll,
I see this is your first post on the Employers Forum. Thanks for joining us.
Sharon :welcome:
Do we count it as a symptom and cover it, or since many children run away treat it as a normal childhood behavior? Does it depend on the child?
Admittedly, I am interpreting the issue narrowly. However, the FMLA specifically says that leave may be taken [B]to care for[/B] a child with a serious health condition. I don't see how that can be interpreted to include looking for a child who has left school without permission. How can you care for a person unless you are actually with them?
Now, I suppose that an argument could be made that the FMLA applies once the child is found if it is necessary for the mother to provide psychological comfort (by calming him down, etc.) at that time. Perhaps the time spent looking for the child could be included within the "penumbra of FMLA coverage" (to coin a phrase). However, I don't think so. Even though the courts interpret the FMLA expansively, there has to be a cutting off point somewhere.
This is, of course, just my opinion. I have never seen a case that addressed this issue.
Julie
Suppose I have an aging parent with Alzheimer's and have been approved for FMLA on an intermittent basis to care for my Mom. My four sisters and I share the responsibility of taking care of her. She lives with my oldest sister who works 4 ten hour days a week and each of the other of us stays with her during the day one day a week. Oh, and my day to care for her is Wednesday.
One Monday, she gets away from my sister, the dopey one, and can't be found in the house or the yard so "Dopey" calls all the rest of us in a panic. We each fly out of work and head to her house to begin the search. (Dopey did call the police, too, after my oldest sister reamed her for not doing it sooner.) We all spend 4 hours looking for Mom and finally find her chatting with a neighbor two streets over who had never met her before and didn't realize she had Alzheimer's. Seems they had a cup or two of tea and a lovely chat while the rest of us were going nuts with worry, etc.
Part of caring for an Alzheimer's patient is keeping him/her safe from harm. Granted Dopey should never have allowed her to get out of the house unsupervised but, once she did, the primary focus of caring for Mom was finding her. As an employee, if I was needed to care for her, whether it was my day to do so or not, I would expect my FMLA leave to cover my time away from work that day.
I think that with an autistic child it could be much the same scenario and caring for the child could include finding him on occasion.
We all know that any child who is sick requires looking after. Caring for a child with chicken pox could be a valid reason for FMLA leave. Does that mean that all you can do with/for that child is take his temp, feed him broth, and pop him into a tepid Aveeno bath twice a day? Or, are you allowed to read to him and maybe play checkers too?
I have the utmost respect for the law and realize that Julie's knowledge of FMLA is far superior to my own but I have to look at this from an HR and employee relations perspective and, at the very least, give the employee the choice of whether to use FMLA leave to search for the child.
One last comment. I can't remember a case where an employer was penalized for allowing FMLA to be used. I think we're mostly just penalized for not letting employees use it.
FMLA is much like any attendance benefit. Employees who abuse it soon run out of time to use and are often terminated for violating the attendance policy. Not allowing an employee to use benefit time, whether it's sick, personal, PTO, or FMLA just drags out that process.
Sharon
David asked for a technical opinion and that is what I gave him. I didn't suggest one way or the other whether he should actually deny leave in these circumstances. I would still like to hear other people's opinions, however, on the question I raised in my first post. What if the employee runs out of leave BECAUSE you designated something as FMLA leave that really wasn't? Is there a potential danger in doing so?
Julie
As an employer, I hope I never run into this situation (at least, before the issue goes to court and gets settled there). Because we would probably allow it, and then if the employee ran out and we were forced to term we would probably get sued and lose. Fortunately I work for a generous employer, who would probably allow the employee to look for the child without repercussions and NOT count it against the FMLA total.
After re-reading my post I thought of one other thing. If my father has an emotional breakdown and goes to the hospital technically there is nothing I can do to care for him. He needs care, but someone else is much better suited to the job. He has a diagnosis though, and I can use FMLA to take care of getting him situated and offerring whatever support I can, even if I cannot actually talk to him (depending on how serious his illness is.)
If my 15 year old austistic son runs away, he still needs care. If he didn't, the call to the authorities would have a completely different tone and it is much less likely that hundreds would be out looking for him. In this case, he cannot cope on his own, and most likely doesn't know how to get help. He needs the security that strangers cannot offer. He needs me. The 'normal' 15 year old would most likely be expected to cool off and come home later. He would not have run away because he was overwhelmed in a simple situation. I am unlikely to need to take off work to go looking for him, though I would most likely be driving around all evening and calling all his friends.
The autistic child has a diagnosis, and needs care. Even if someone else can care for him, in an emergency situation (like running away) I think a real case can be made that the parent [I]is [/I]needed and should get FMLA.
What if, in the spirit of generosity, we designate looking for the child as FMLA leave and then a month later the employee runs out of FMLA and any other leave time, runs afoul of our attendance policy, and, as a result, is terminated? Then the employee goes to an attorney who says, wait a minute here, they weren't supposed to count the day you went looking for your son as FMLA leave. So technically, you should have had another day of leave available on the day they termed your employment. We can sue them for violation of the FMLA and wrongful termination.
Chances are, if the employee was that close to being in violation of the attendance policy, not granting FMLA leave for that day would have just sped up termination for attendance policy violation and granting it would have just delayed termination. We can't, however, speculate about how the decision to make any given absence FMLA leave or not may impact an employee's attendance down the road. We have to look at the situation that day and make a decision based on the law. Which leads me to another option.
Instead of designating that day as FMLA leave, the best option might just be to grant an excused absence that doesn't use up the employee's FMLA leave for something that, legally, doesn't qualify as FMLA and also doesn't adversely impact the employee's standing regarding attendance. This solution addresses the legal issue of using FMLA for a non FMLA qualifying absence. It gives the employee the time he/she needs to attend to a family matter. And, it resolves the employee relations issue as well.
Any thoughts on this as an answer to this dilemma?
Sharon
Julie
Somehow, though, I just can't bring myself to include unruly teenagers in that group. I think there is a huge difference in the two situations. As a parent, I would let my teen sit in jail until I got off work. Let's call it a life lesson that just might do him or her some good. That doesn't mean, however, that I wouldn't agonize over it. Probably wouldn't get a whole lot of work done during those few hours either.
I agree with you that consistency is the name of the game in HR. Many employers have a leave policy that allows flexibility at their discretion and they do need to be consistent in how they administer that policy. I think that as long as they are consistently fair in how the policy is applied, they can defend their actions, even in court if needed, although, that doesn't mean they'd win.
Sharon
Julie Athey
Editor - FMLA Compliance Bulletin