Most human resources folks know that, under the Family and Medical Leave Act, eligible employees can take leave to care for a child with a serious health condition, and that the FMLA defines “child” as being under the age of 18. But what some perhaps don’t realize is the FMLA has an additional definition of “child”: one over 18 years who is “incapable of self-care because of a mental or physical disability.” And even if they’re aware of that definition, they may not understand that the disability can be quite temporary in nature. A recent case, Gibson v. New York State Office of Mental Health, clearly makes this point.
The employee sought FMLA to care for her daughter and grandchildren following the daughter’s surgery. The request was denied by the assistant personnel manager, who correctly noted that there is no FMLA to care for grandchildren (unless the grandparent is standing in loco parentis to the grandchild – in other words, acting as the parent). But it was also denied as to the daughter because she was over 18. And this is where he went wrong.
The FMLA regulations provide a definition of “incapable of self care” as requiring assistance in three or more of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs), and these encompass a wide range of activities. The regulations provide examples of each. ADLs include “caring appropriately for one’s grooming and hygiene, bathing, dressing and eating.” IADLs are even more expansive, including “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.” (Honestly, this list is so all-encompassing that I think I’m incapable of self-care!) Obviously, this is an easy threshold to meet.
Additionally, the family member must be incapable of self care because of a disability, and the FMLA regulations invoke the definition of disability under the Americans with Disabilities Act – a physical or mental impairment that substantially limits one or more of the major life activities of the individual – and cites to the ADA regulation. Notably, under the ADA, disabilities do not have to be permanent or long-term in nature. According to the EEOC, even temporary impairments can be disabilities “If sufficiently severe.”
In our experience, this is where many HR professionals may get tripped up, just like the assistant personnel manager. Most of them understand that an adult child with a chronic disability will be covered under the FMLA. But many assume that the FMLA does not apply to normally healthy adult children with a temporary condition. That may be the case in many situations – but not all. So, caring for an adult daughter following a normal childbirth, or one who has had surgery with a short recovery period (of days, not many weeks or months), will most likely not be covered by the FMLA. However, an individual recovering from major surgery or catastrophic accident may, in fact, be disabled within the ADA and therefore meet the definition of a “child” under the FMLA.
The lesson here is that requests to care for normally healthy adult children should not be automatically denied. Rather, requests for FMLA to care for an adult child requires careful, thoughtful analysis of the child’s medical condition to see if it meets the definition of an ADA disability.