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FMLA Requires Leave for Care of Adult Children

ABSENTEEISM POLICY

Legally Researched, Easy to Use. Discusses Absenteeism, Absences, Overtime, Pay

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The FMLA allows employees to take leave to care for adult children as well as children under the age of 18. A recent court ruling helps employers understand when adult children are covered under the FMLA.

Most employers understand that employees may take time off under the Family and Medical Leave Act (FMLA) to care for a family member, including a parent, spouse, or child. However, many employers are not aware that the FMLA allows time off to care not only for minor children but also for adult children who are incapable of self-care because of a disability. A recent decision by a federal district court in Tennessee, in Bryant v. Delbar Products Inc., No. 2:97-0070 (8/27/98), provides employers with insight into the FMLA’s coverage of this type of leave.

Employee Fired for Absences to Care for Adult Son

The issue in this case was the employer’s treatment of the employee when she was absent because of her adult son’s medical problems. The company’s absenteeism policy assesses points when employees miss work for unexcused reasons. When employees accumulate six points, they are placed on probation; at eight points, they are terminated. Thus, when the employee took a half-day off from work because her adult son was hospitalized for kidney failure, the company denied the absence and assessed her one-half of a penalty point. The employee missed an additional half-day to take her son to a doctor’s appointment and was again penalized one-half point. A year later, the employee was terminated when she had accumulated eight absenteeism points. She filed suit under the FMLA, claiming that the employer should not have assessed her points for the time off to care for her son and that it violated the Act by terminating her.

Definition of "Child" Key to Decision

To determine whether the employee’s absences were protected by the FMLA, the court focused on the law’s definition of child. The FMLA defines a child to include both children under 18 and those who are "18 years of age or older and incapable of self-care because of a mental or physical disability." Under the FMLA regulations, the term "incapable of self-care" means that the person needs daily 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). The regulations further define ADLs to include caring for one’s grooming and hygiene, bathing, dressing, and eating. IADLs include cooking, cleaning, shopping, taking public transportation, and paying bills. Based on this definition, the court determined that the son was incapable of self-care because he could not perform four IADLs both while he was in the hospital and after he was released. He could not cook, clean, shop, or take public transportation.

The court then examined whether the son suffered a disability. It pointed out that the FMLA relies on the definition of disability in the Americans with Disabilities Act (ADA). Thus, to be disabled, the son must have a physical or mental impairment that substantially limits a major life activity. According to the court, the son’s advanced kidney failure qualified as a physical impairment that substantially limited the major life activity of working. Therefore, the son was disabled under the ADA and met the definition of a child under the FMLA. The court then determined that the employee’s absences should have been counted as FMLA leave and the company should not have assessed points for these absences under its absenteeism policy. As a result, the employer violated the FMLA when it considered the absences in its termination decision.

Evaluate Absences Carefully

At first glance, this case seems to allow employees to take FMLA- protected time off for just about any adult child who is sick. The standard for "incapable of self-care" appears fairly easy to meet if a person only has to be unable to cook, clean, shop, and take the bus. However, since the adult child also must be disabled to fall under the FMLA’s protections, employers should be able to limit these absences to legitimately ill and needy adult children. Thus, an employee may be able to take FMLA leave to care for an adult child in the hospital with cancer (typically considered a disability) but may be denied leave to care for an adult child with a broken leg (generally not considered a disability). In addition, to verify further the employee’s need for leave, employers may (and should) require medical certification from the adult child’s health care provider. This certification must show that the employee is needed either (1) to assist the child in basic medical or personal needs, safety, or transportation; or (2) to provide psychological comfort that would be beneficial to the child.

Since very few courts have addressed the issue of FMLA leave to care for adult children, it is difficult to predict whether other jurisdictions will follow this decision. However, since this court relies heavily on the FMLA statute and its regulations, there is good reason to believe that others will adopt its rationale.

For more information on FMLA leave for family members, see Leaves of Absence, Chapter 703, page 703:24, note 31.

This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.

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