From the Hotline: Personal Leave of Absence vs. FMLA

Question: An employee wants to take FMLA to be with a child, who is over 18, that will be undergoing health treatments. Because the child is over 18, would offering a personal leave of absence instead of FMLA be appropriate?

Answer: According to the guidance and clarification from the Federal Government, you probably could allow the employee to take FMLA for the care of his/her adult child with health problems.

From the U.S. Department of Labor website:  “The FMLA regulations adopt the Americans with Disabilities Act (ADA) definition of disability as a physical or mental impairment that substantially limits a major life activity, as interpreted by the Equal Employment Opportunity Commission (EEOC), to define “physical or mental disability.”  If an adult son or daughter is “incapable of self-care” due to a disability, he or she will meet the FMLA definition of a son or daughter for whom an eligible employee may take leave.  An individual will be considered “incapable of self-care” for FMLA leave purposes if he or she requires active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs).

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) that was signed into law on September 25, 2008 significantly broadened the scope of the term “disability” under the ADA.   In order for a parent, who is an eligible employee, to take FMLA leave to care for a son or daughter 18 years of age or older, the adult child must be incapable of self-care due to a mental or physical disability, i.e., an impairment that “substantially limits” one or more of the individual’s “major life activities.” The ADAAA broadened the definition of “major life activities” under the ADA to include, among other things, the “operation of a major bodily function” such as those of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems.  Among other criteria, the ADAAA includes “providing psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient care or home care”.

Please keep in mind that the FMLA statutes prohibit Interference with FMLA rights leave.  Please review the facts and circumstances surrounding the need for time off and consult with legal counsel prior to denying FMLA.  Additional information can be found at:  http://www.dol.gov/whd/fmla/AdultChildFAQs.htm.