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FMLA Protection to Care for Adult Child

bobobobo 9 Posts
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We have an employee who has requested FMLA to care for an adult daughter recovering from surgery. The adult child's surgical wound has developed an infection and the employee claims a need to take the daughter to the doctor once per week (one day per week off) to get care for the daughter. Doctor has provided certificate indicating the daughter, in fact, needs the care.

Because of a long list of reasons I really do not want to extend FMLA coverage to this employee.

FMLA would cover this employee to care for her daughter if the daughter was mentally or physically disabled and unable to care for herself. This situation does not seem to qualify the daughter as as a "physically disabled" person. My question is, can I make that decision or do I have to rely on a medical practicioner to do so?
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  • 8 Comments sorted by Votes Date Added
  • Down_the_MiddleDown_the_Middle 771 Posts
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    i think your "long list of reasons" is clouding your bias here. Seems to me the employee is permitted intermittent leave to transport and care for the family member until the MD deems that unnecessary.
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  • Don DDon D 9,834 Posts
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    I agree with 'down the middle'. Disregard your 'long list of reasons' for not wanting the ee to have the leave. No matter the age of the child, once the doctor certifies that he or she is unable to meet certain needs, which I think would include transport to treatment, then the child, even though an adult child, has qualified the ee for intermittent FMLA. I wonder, though, why it would take an entire day for the treatment or is it simply routine followup office visits? With intermittent you and the employee have to agree on the timing and work schedule and you are within your rights to tell the ee (s)he should schedule the visit so as to take no more than a half day. But, back to your long list of reasons...When you stack up your long list and weigh it against her attorney's short list (FMLA denial), your long list will shrink like a violet in importance. Save your list till another day and separate it with some time passage so it won't appear to be retaliation for having taken FMLA.
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  • bobobobo 9 Posts
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    Yeah, thanks. I agree. I just needed to have somebody else tell me that I am better erring on the side of caution than to take a chance that could result in litigation.
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  • WOWO 130 Posts
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    I'm sorry I disagree here. I have had the same situation where FMLA was denied as not eligible due to the adult child not being disabled per the regulations, however the employee was allowed to take sick leave under our personnel rules. The employee was fine with that and I did not have the extra burden of managing an FMLA leave nor the precedent.
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  • SandiFSandiF 160 Posts
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    I agree with WO - FMLA is for the care of minor children. In Washinton state effective 1/1/03, employees may use their sick days/PTO to care for adult children, parents, parent in law, grandparent and spouse who has a "serious health condition" or "an emergency condition."
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  • LFernandesLFernandes 314 Posts
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    Under Section 825.113 (c) a son or daughter means 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 mental or physical disability."

    Under Section 825.116 (a) The medical certification provision that an employee is "needed to care for" a family member encompasses both physical and psychological care. It includes situations where for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

    Be careful. I would probably grant the FMLA leave but before I did, I would try to get more information from the employee. Good luck!
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  • Don DDon D 9,834 Posts
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    As stated elsewhere, FMLA is indeed intended for children other than minor children if the doctor indicates that the care required includes transportation for one who cannot otherwise keep an appointment. Physical or mental Incapability for taking care of one's personal needs, including transportation to the doctor, removes the minority scenario in FMLA. As Rockie says, it ain't worth the hassle you'll be buying to fight it.
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  • RockieRockie 2,136 Posts
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    Once a physician gives a statement verifying the need in a case like this, I would be very hesitant about not giving the FMLA leave. It is not worth the hassle that you would have to go through if an employee took issue with it.


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