The FMLA is complicated for employers to apply. One reason for this is that most every “definition” in the statute contains another word that has its own definition. For example, we know that FMLA leave may be taken to care for the serious medical condition of a family member. We know that “family member” includes a child of the employee. But who is a “child” under the statute? Here’s one twist on that question.
Q: An employee has requested to take intermittent FMLA leave to care for her adult son, who has long-term emotional problems, whenever there is a “situation where she is needed.”
There are three questions that the employer would need to have answered before being able to determine whether the requested leave is FMLA qualified. First, the employer must determine if the adult son is a covered family member, which requires a determination of whether he is “incapable of self-care.” If he requires assistance to engage in the activities of daily living, the second question is whether this inability is a result of a chronic serious medical condition. Third, the employer would need a further description of the “situations” for which the employee would require leave.
Adult Children and the FMLA
Adult children can qualify as a “family member” for purposes of the FMLA only if the individual is incapable of self-care because of a mental or physical disability. “Incapable of self care” means that the individual requires active assistance or supervision to provide daily self-care in at least three “activities of daily living,” such as bathing, dressing, eating, cooking, cleaning, shopping, or taking public transportation.
Emotional Problems as a Serious Medical Condition
The statement that the employee’s son has “emotional problems” is insufficient to qualify him as having a serious medical condition, as is required for FMLA protection. A health-care provider, such as a psychologist, should determine whether the son’s emotional problems constitute a serious medical condition as that term is defined by the FMLA.
“Situations” as Reason for Leave
The FMLA broadly defines the times that an eligible employee can take leave. Simply, the employee must only be taking leave to provide care for or provide psychological comfort to an immediate family member with a serious health condition. If, in the first question, we determined that the adult son qualifies as an “immediate family member” and, in the second question, determined that his “emotional problems” qualify as a serious health condition, the final question is whether the employee is requesting leave to provide care or psychological comfort for her son. If she is taking him to medical appointments or simply caring for him while he is not well, this time is protected by the FMLA. But if she was requesting leave to take him to have his picture taken for the annual holiday card, or to a friend’s house to visit, these would not qualify as protected activities and would not constitute FMLA-eligible leave.