Because there seems to be some confusion as to how this works and who is eligible, we have decided to provide the following guidance.

By Nadine Vogel, President Springboard Consulting, LLC

Because there seems to be some confusion as to how this works and who is eligible, we have decided to provide the following guidance.

An employee who is caring for a child with a serious health condition who is under eighteen years old or is at least eighteen and incapable of caring for themselves due to a mental or physical disability, as defined by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), is eligible for twelve workweeks of unpaid, job-protected leave during a twelve month period under FMLA.

The FMLA regulations use the ADA’s definition of “disability” as a physical or mental impairment that substantially limits a major life activity. The FMLA regulations define “incapable of self-care because of mental or physical disability” as when an adult son or daughter “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ or ‘instrumental activities of daily living’. A parent will be entitled to take FMLA leave to care for a son or daughter eighteen years of age or older, if the adult son or daughter has a disability as defined by the ADA; is incapable of self-care due to that disability; has a serious health condition; and is in need of care due to the serious health condition.

It is only when all four requirements are met that an eligible employee is entitled to FMLA-protected leave to care for his or her adult son or daughter.

The child being incapable of caring for themselves means that they cannot care for their own basic medical, hygienic, safety or nutritional needs and/or is unable to transport themselves to the doctor. Special needs parents know all too well that the care required can and will often shift from medical or nutritional needs to more of psychological comfort and support especially when the child is being treated in a hospital or other institutional setting. Even in-home care can be daunting for the individual, requiring the reassurance and support of a loving parent.

Because the ADAAA broadened the definition of “disability,” many employers believe there will be an increase in the number of requests for FMLA-protected leave to care for an adult child with a disability.

Whether that proves to be true or not, what has been seen is an increase in FMLA requests from employees who have an adult child returning home from war with a service-related disability. In this case, the law provides for a special military-caregiver leave provision which extends FMLA leave for the parent to twenty-six workweeks in a single twelve-month period for each serious injury or illness. This special leave provision is also extended to the wounded warrior’s spouse, adult child, and even next of kin.

The following example illustrates how such a request may be handled. A mom has exhausted her twenty-six workweeks of military caregiver leave to care for her single, thirty-year-old daughter, a returning service member who sustained extensive orthopedic injuries to all four of her limbs. In the next FMLA leave year, this mom requests leave from her employer to care for her daughter as she undergoes and recovers from additional surgeries and prosthetic fittings and therapy. In this case, the mom will be entitled to take up to twelve workweeks of FMLA-protected leave to care for her daughter because her injuries substantially limit her ability to perform manual tasks, and the daughter is incapable of self-care due to a disability, meaning she needs active assistance or supervision in bathing, dressing, and eating. The daughter’s injuries are a serious health condition because they require continuing treatment by a healthcare provider, and the mom is “needed to care” for her daughter.

If and when needed, FMLA is an invaluable benefit, but to be truly effective it is critical that both the employer and employee understand how it works.

Nadine Vogel is president of Springboard Consulting LLC. Springboard (www.consultspringboard.com) is considered a global expert, working with corporations, governments, and organizations on issues pertaining to supporting the disability community in the workforce, workplace, and marketplace. She is also the author of DIVE IN: Springboard into the Profitability, Productivity and Potential of the Special Needs Workforce.

  • Debbie Forand

    October 1, 2013 #1 Author

    Great article but it is still flawed. I recently had to quit my gov job due to my disabled child. We had FMLA and it worked great but did not protect us. I had afterschool care issues because of his disability and FMLA did not protect us. No opportunity to telework no opportunity to cut back on my hours to care for him in the afternoon. We are now back in the system because this law failed us.

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