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Employee Fired for Absences to Care for Adult Son
Definition of "Child" Key to Decision
Evaluate Absences Carefully
The FMLA allows employees to take
leave to care for adult children as well as children under the age
of 18. A court ruling helps employers understand when adult
children are covered under the
FMLA.
[Creating HR Policies or Employee Handbook?]
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 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
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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.
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