FMLA: How Serious Is It, and What Does the Law Say?
by Robert Dietrich |
My father was a physician, and I remember him often saying that he goes to work every day to learn how much he did not know about medicine in that everyone’s body chemistry was so different. I think his expression can apply to the complex world of human resources law and regulations that govern the modern workplace. Just when you think you can speak FMLA-ese, and you believe you have a strong working knowledge of the requirements under the Act, a request for FMLA leave can send you back to the drawing boards. Be careful that you do not make too hasty of a decision; I am sure your employees’ lawyer or their union will not.
What does the law say about FMLA leave for caring for an adult child? Well that is simple, 5 CFR, Sec. 630.1202 only permits FMLA leave for their children if the child is under 18 or is disabled. Now, let me pose a hypothetical scenario: An employee requests to have 12 weeks of FMLA leave because her adult daughter was seriously injured in a car accident, and hospitalized in intensive care. Any manager, who is also a parent, may empathize with his/her employee’s plight, and may be inclined to grant the leave. However, is the employee entitled to the leave under FMLA? The answer can go both ways depending upon the facts.
Section 630.1202 defines an adult child as one who is: “18 years of age or older and incapable of self-care because of a mental or physical disability. A son or daughter incapable of self-care requires active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” (ADL’s) or “instrumental activities of daily living” (IADL’s). Activities of daily living include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using the telephones and directories, using a post office, etc. A “physical or mental disability” refers to a physical or mental impairment that substantially limits one or more of the major life activities of an individual as defined in 29 CFR 1630.2 (h), (i) and (j).”
The law goes on to say that the employee would be entitled to the leave to care for her adult child only if the child is suffering from a serious health condition and is incapable of caring for herself because of a mental or physical disability. In the instant situation the employee’s adult daughter is being cared for by the hospital, who is attending to all of her medical and physical needs while she is a patient at the hospital?
Under these conditions management should be advised to disapprove the request for FMLA leave because the hospital is assuming the “in loco parentis” position of providing full care to the injured daughter. This is where the emotions can run high, especially if the daughter does not live nearby whereas her mother is unable to see her frequently before or after work hours. To some, it may appear to be cold hearted to disapprove the FMLA leave; however, managers and human resources must look beyond the circumstances to the broader good of the organization. While it might be easy to approve the request, one must recognize that to do so could set a precedent within the organization, and in a collective organized environment be viewed as a past practice if such approval were notorious, long standing and unchallenged. For these reasons, it is imperative that line management always seek advice from their human resources or counsel to ensure their actions comply with the law and regulations and concurrently do not bind the organization to a precedence that it does not wish to establish.
Could the employee be entitled to the FMLA once her daughter is discharged from the hospital? Here management would have to be guided by the medical documentation provided by the employee to support her request. In order for the employee to be entitled to the FMLA leave the documentation would have to demonstrate that the daughter was disabled under the American with Disabilities Act (ADA) whereas she has a serious health condition and is incapable of self care. FMLA defines these as: “(1) Serious health condition means an illness, injury, impairment, or physical or mental condition that involves–
(i) Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care; or
(ii) Continuing treatment by a health care provider that includes (but is not limited to) examinations to determine if there is a serious health condition and evaluations of such conditions if the examinations or evaluations determine that a serious health condition exists. Continuing treatment by a health care provider may include one or more
of the following–
(A) A period of incapacity of more than 3 consecutive calendar days,
including any subsequent treatment or period of incapacity relating to
the same condition, that also involves–
(1) Treatment two or more times by a health care provider, by a
health care provider under the direct supervision of the affected
individual’s health care provider, or by a provider of health care
services under orders of, or on referral by, a health care provider; or
(2) Treatment by a health care provider on at least one occasion
which results in a regimen of continuing treatment under the supervision
of the health care provider (e.g., a course of prescription medication
or therapy requiring special equipment to resolve or alleviate the
(B) Any period of incapacity due to pregnancy or childbirth, or for
prenatal care, even if the affected individual does not receive active
treatment from a health care provider during the period of incapacity or
the period of incapacity does not last more than 3 consecutive calendar
Incapacity means the inability to work, attend school, or perform
other regular daily activities because of a serious health condition or
treatment for or recovery from a serious health condition.”
If the documentation provided by the daughter’s attending physicians satisfies the above, then the employee’s request must be granted.
What about minor medical concerns and ailments, are these conditions eligible for FMLA? Again, the determination must be guided by the medical justification provided. If the documentation demonstrates that the employee’s ailment is considered a serious health condition, requires continuing periodic treatment, and such treatment leaves the employee unable to perform the “essential” duties of their position for three days or more (630.1202 (B)), then the condition would normally be covered by FMLA. If the minor ailment cannot satisfy these parameters, then it is doubtful the condition falls under FMLA.
As you can see, the answer is not always clear. The requirements of FMLA are rarely understood by those seeking the leave, and management’s request for the documentation is often viewed as a bureaucratic claptrap by an organization unwilling to fulfill its legal obligations, or worse yet, an invasion of one’s medical privacy. Education of the workforce as to the requirements of the Act is just as important as the education of those who must administer its provisions.
© 2013 Robert Dietrich. Article may not be reproduced or redistributed with out express written consent from Robert Dietrich.