HR Question:

One of our employees has requested FMLA leave to care for an adult child who is disabled. Do we need to allow the time off under FMLA?

HR Answer:

It can be challenging to navigate through Family and Medical Leave Act (FMLA) requests like this. Employees can use FMLA for many reasons, including caring for a child with a serious health condition. However, when the child is mentally or physically disabled and 18 or older, employers may question whether FMLA still applies. You’re probably not surprised to hear that the answer is, “It depends.” We’ll shed light on some factors to consider as you strive to assess an employer’s obligation to grant FMLA time off under such circumstances.

Understanding FMLA Eligibility

FMLA is designed to provide job-protected leave for eligible employees facing certain family or medical situations. To determine if an employee is entitled to FMLA leave, several factors come into play. The U.S. Department of Labor (DOL) provides a detailed FMLA Employer’s Guide walking you step-by-step through the process of determining eligibility, notification requirements, qualifying reasons for leave, recordkeeping requirements, and more.

According to the DOL, an eligible employee must work for a covered employer, which includes private-sector employers with 50 or more employees, public agencies, and public or private elementary or secondary schools. Additionally, the employee must have worked for the employer for at least 12 months and completed a minimum of 1,250 hours of service during the previous 12 months.

What’s Considered a “Serious Health Condition”?

Under FMLA, eligible employees are entitled to take up to 12 weeks of unpaid leave in a 12-month period for various qualifying reasons, one of which is to care for a child with a serious health condition. According to the DOL, a serious health condition includes “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.”

However, the definition of a “serious health condition” doesn’t necessarily hinge on the child’s age or level of independence. It focuses more on the nature and severity of the health condition. A mentally or physically disabled child, even if they are 18 or older, may be incapable of self-care and may require significant care, supervision, or assistance due to their condition. In addition to a permanent mental or physical handicap, an adult child may experience a short-term disability (i.e., illness or injury) that could prevent them from daily activities or self-care, in which a caregiving parental role may apply as well.

Is the Adult Child Incapable of Self-Care?

The DOL provides a helpful fact sheet specifically about taking FMLA leave to care for an adult child who is disabled, along with some examples of qualifying short-term disability scenarios. In this document, the DOL explains that an adult child must be “incapable of self-care” to qualify for FMLA coverage. They further explain that “incapable of self-care” means the employee’s adult child requires active assistance or supervision with three or more “activities of daily living” or “instrumental activities of daily living,” such as grooming, eating, bathing, dressing, cooking, maintaining a home, etc.

As you can imagine, each FMLA request will have its own unique factors. Therefore, employers should carefully assess the specific circumstances of each case, along with other applicable federal and state regulations, when evaluating FMLA eligibility to increase the chances of being compliant.

Recommendations for Employers

Considering the nuances surrounding FMLA and caring for mentally or physically disabled children, employers should adopt a compassionate and informed approach. Best practice suggests employers utilize an interactive process with employees and engage in open communication, including detailed documentation, to understand the specific needs of the situation. This proactive approach may help in complying with FMLA regulations as well as cultivating a supportive work environment and culture.

Here are some recommendations:

1. Review and Understand FMLA Regulations: Employers should thoroughly review FMLA regulations and stay updated on any changes. Understanding the criteria for eligibility and the definition of a serious health condition is crucial.
2. Engage in Open Communication: Foster open communication with the employee. Understand the specific needs related to caring for the mentally disabled child and work together to find solutions that accommodate both the employee and the employer.
3. Seek Legal Counsel if Uncertain: If uncertain about the application of FMLA in a specific case, employers should seek legal counsel. Legal professionals can provide guidance based on the unique circumstances of the situation.

Assessing requests for FMLA time off can raise complex considerations for employers. Following best practice, employers should navigate these situations with sensitivity, adhere to FMLA regulations, and be mindful of other federal and state law implications. Engaging in open communication with employees and seeking legal counsel when needed can help strike a balance between supporting employees and achieving compliance.

Thank you to Cassie Whitehouse, M.Ed., Senior HR Business Advisor for contributing to this HR Question of the Week.

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