As parents often repeat, their children are always going to be their children, whether they be two or ninety-two. And, employers often readily grant Family Medical Leave Act (FMLA) leave to employees caring for their minor children. But, what happens when employees request FMLA leave to care for their adult children? Although employers are often less familiar with these provisions, they are important parts of the FMLA.
Context
Generally speaking, the FMLA enables eligible employees to take up to 12 workweeks of leave in a 12-month period for certain family and/or medical reasons.[1] This includes parents taking leave to care for their sons or daughters. FMLA provision 29 CFR § 825.122(d) defines “son or daughter” as “…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’ at the time that FMLA leave is to commence.” Under FMLA regulations, the adult child must require active assistance to provide daily self-care in three or more activities of daily living or instrumental activities of daily living (ex. grooming, cooking, eating, shopping, etc.). And, the FMLA adopts the Americans with Disabilities Act’s (ADA) definition of “disability.” These provisions allow employees to utilize FMLA leave to provided needed care to children, regardless of their age.
With that bit of background, let’s dive into this area of the FMLA. Read the following questions and pinpoint which are true or false according to the confines of FMLA land.
Question 1: A long-time employee, Janet, requests FMLA leave to care for her adult daughter, who is undergoing treatment for thyroid cancer. Janet is eligible for such leave and the company is a covered employer. The company provides Janet with FMLA paperwork, which Janet returns, but the question regarding leave duration is left blank. The company does not ask her to fill it in, as the certification stated Janet’s daughter would require assistance through at least July, and the company reasons that Janet will not return to work at the end of her 12 weeks of leave. Ever enterprising, the company hires someone to fill Janet’s position after Janet has been gone about a month. When (surprise!) Janet reports to work at the end of March, she is told that she no longer has a job. The company followed the letter of the FMLA. True or False?
Answer: False; Janet’s daughter meets the FMLA’s definition of “daughter,” as she is a) Janet’s biological child, b) is incapable of statutory self-care, and c) meets the disability condition (the FMLA defines a disability as a mental or physical impairment that substantially limits one or more of the major life activities of an individual) of this definition, even though she is over age 18. Janet needs to take FMLA leave as her daughter has a serious health condition and needs care because of it. Janet’s leave was FMLA-protected and she should not have been replaced. A similar scenario played out in Gienapp v. Harbor Crest, 756 F.3d 527 (7th Cir. 2014), where the employer said “Janet” was not qualified for FMLA leave because her daughter was a married, emancipated adult. However, the Court fell flatly on Janet’s side, as the FMLA allows for the Janets of the world to care for their disabled children, regardless of age.
Question 2: Raul works in a company’s accounting department. Unfortunately, Raul’s adult daughter, Minisha, is in a car accident, whereby she suffered two broken femurs, a small hole in her lung, and a small hole in her bladder. Raul requests FMLA leave to care for Minisha. Raul is eligible for such leave and the company is a covered employer. Although Raul is only out for approximately one week caring for Minisha (providing emotional support, making her meals, transporting her), the company denies that his leave was FMLA eligible because Minisha’s conditions were temporary in nature and were, therefore, not disabilities. Approximately 3 weeks later, Raul is fired and replaced. Raul files a FMLA interference and retaliation claim. The company will not prevail on this issue because Minisha was, in fact, a disabled daughter under the FMLA and needed Raul to care for her because of her serious health condition.
Answer: True; Minisha qualifies as a “daughter” under the FMLA because she was unable to perform activities of daily living and has an ADA and FMLA-qualified disability. Because of her accident, Minisha was incapable of self-care (based on her condition at the time Raul’s FMLA commenced) and had a serious health condition under the FMLA. Raul was needed to care for Minisha because of her serious health condition. In Patton v. Ecardio Diagnostics LLC, 793 F. Supp. 2d 964 (S.D. Tex. 2011), the Court rejected the employer’s Motion for Summary Judgment because they failed to adequately provide FMLA leave and manufactured a pretextual reason for terminating their employee who had requested FMLA leave under similar circumstances.
Conclusion
To avoid FMLA interference claims, employers must scrutinize the facts related to an employee’s need for FMLA leave to care for an adult son or daughter. Keep the ADA’s broad definition of disability in mind alongside the individual’s condition at the time FMLA leave is requested (even though it may be temporary or change). For a more in-depth look at the nuances of this issues, the U.S. Department of Labor issued Administrator’s Interpretation No. 2013-1, which can be found at https://www.dol.gov/WHD/opinion/adminIntrprtn/FMLA/2013/FMLAAI2013_1.pdf.[2] If you have questions about how this applies to your business, contact Soule Employment Law Firm at 984-242-0771.
Legal Disclaimer: Jenny Sweet is licensed in the state of North Carolina. This article discusses general principles of North Carolina and federal law. It should not be considered legal advice for a particular factual setting and does not create an attorney-client relationship.
[1] This article does not address military caregiver leave and its 26 workweeks or qualifying exigencies arising from an employee’s spouse, parent, or child who is a military member on “covered active duty.”
[2] For further reading, also see the US Department of Labor’s FMLA fact sheets at https://www.dol.gov/whd/fact-sheets-index.htm, especially Fact Sheet #28K: “Son or Daughter” 18 years of age or older under the Family and Medical Leave Act and Fact Sheet #77B: Protection for Individuals under the FMLA.