Suppose one of your employees comes to you with an FMLA leave request. The reason: to care for her daughter, who has cancer. Your first thought may be that you must approve the request
The FMLA requires up to 12 weeks’ unpaid leave time to care for an immediate family member with a serious health condition. Few would even try to argue that cancer is not a serious health condition. The FMLA says that a son or daughter is an immediate family member. So what’s the question? This employee’s daughter is an adult. Does that change anything? Definitely, maybe. Or, it depends on the circumstances. Read on to learn more…
(image from athenstech.edu)
FMLA regulations do clearly state that “son or daughter” under the FMLA generally means a child under the age of 18. That would seem to indicate that you do not have to grant FMLA leave to an employee seeking time to care for a grown child. Let’s hold that thought for a bit, shall we?
Now let’s add some more facts to our case. Suppose you give your employee a certification to be completed by the treating physician. The certification comes back, but it says nothing about the intended duration of the leave, but it does say that if the daughter does recover she will probably need care for a good six months. (You also know that the daughter in question is not only grown but married.) While you grant the request, you assume that your employee will not be returning to work, and, about one month later, you hire a replacement. You are surprised when your (former) employee reports to work a few weeks later. As you have probably guessed, your employee sues for leave interference and retaliation. You aren’t worried, though. Your attorneys argue that you could not have violated the FMLA, because your employee was never qualified to take it in the first place, because FMLA doesn’t allow time off to care for a grown, emancipated, married child. What do you think will happen now?
You can probably guess that this scenario really did happen, in Gienapp v. Harbor Crest, 756 F.3d 527 (7th Cir. 2014)–and the employer lost. Wait. What? How could that be? If FMLA regulations say that “son or daughter” under the FMLA does not include adult children, where is the FMLA violation? There is an exception. (Isn’t there always?) “Son or daughter” will also include an adult child who is ” incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.” This employee’s daughter clearly had a serious health condition and clearly would have been incapable of self-care at the time, but is the condition a “mental or physical disability”? How is that term defined under the FMLA? Well, the DOL in its Fact Sheet on this issue says that it uses the definitions found in the EEOC’s regulations under the Americans with Disabilities Act (ADA).
A condition is a disability under the ADA (and, in this case, the FMLA) if it is a physical or mental impairment that substantially limits one or more major life activities. The ADA, particularly with the amendments that took effect in 2009 defines “major life activity” very broadly. The term includes without limitation, activities such as “caring for oneself, performing manual tasks, seeing, eating, standing, reaching, breathing, communicating, and interacting with others, as well as major bodily functions, such as functions of the brain or immune system, or normal cell growth. Use of medical supplies or medications to lessen the effects of the disability, other than the use of ordinary eyeglasses or contact lenses, may not be considered in determining if a disability exists. Other aids that should not be considered include hearing aids, prosthetics, and assistive technology”.
The court in Gienapp found that the daughter was unable to care for herself during the time period in question and therefore concluded that she was a “daughter” within the meaning of the FMLA, rendering the employer in violation.
Let’s look at another possible scenario. Suppose one of your employees has been absent 10 or more times in the last 12 months, and she claims it was to care for her pregnant daughter. In fact one of those times was when the daughter was in labor. The FMLA specifically states that pregnancy is a serious health condition, doesn’t it? Well, not exactly, but let’s get back to that. Do you have to provide job-protected leave time to that employee under the FMLA? The US District Court for the Middle District of Tennessee said “No” in Gray v. Clarksville Health Sys., G.P., No. 3:13-00863, 2015 U.S. Dist. LEXIS 2455 (M.D. Tenn. Jan. 9, 2015). Why would the grown daughter with cancer be a “daughter” within the meaning of the FMLA but the grown, pregnant daughter in this case not be? According to this court the state of pregnancy in and of itself is not a serious health condition. Incapacity due to pregnancy is. If the daughter were incapacitated due to her pregnancy, and therefore unable to care for herself, then the employee might well have been entitled to job-protected FMLA leave. Since there was no indication of such an incapacity, this employee lost her FMLA claim.
So here’s the general rule: An employee is not entitled to FMLA leave to care for a grown child unless s/he can show that the child, by reason of a serious health condition has a disability (as defined by the ADA/ADAAA) and therefore cannot care for him/her self. As you can see there are many facets and nuances to the FMLA. So before you deny a request or terminate an employee out of hand, check the specific facts against the law– and, of course, consult your friendly employment counsel!
OK, let’s meet again next week. In the meantime, stay cool!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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