FML Adult Child
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2 Posts
We have an employee requesting FML for their adult child who is having surgery. Their child is married and does not live at home. Part of the definition of Son/Daughter under FML says "18 years old or older and incapable of self-care because of a mental or physical disability at the time the FMLA leave is to commence.
How are we supposed to know if the child is incapable of self care? Is that something that would fall under ADA. In order to qualify do we need to get into whether or not the child qualifies under ADA to see if the employee is eligible for FMLA? The other factor is the child is married. Would that disqualify the parent from being eligible for FML or could the parent share the FML with the husband?
Comments
Have you received the Physician's Certification required for FML? This should be telling as to if the adult child will be incapable of self-care. If it does not indicate this, I would deny the leave.
I always error on the side of caution: if I have all of the required documentation, the employee qualifies and the condition (whether it is the employee's or a family member's) qualifies, I approve the leave.
here's a good article on the subject: http://www.ppspublishers.com/articles/fmla-adult-children.htm
..."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."
The article does go on to talk about the interaction with ADA and the definition of a disability...."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."
However, this is just about one court ruling.
And here is a more up-to-date article : http://www.shrm.org/LegalIssues/FederalResources/Pages/AdultChildren.aspx that talks about how ADAAA changed the playing field a bit more.