First, let's reacquaint ourselves with the law and regulations on point.  As we know, an employee is entitled to FMLA leave to care for a child with a serious health condition.  Under the regulations, "child" is defined as a son or daughter who is: 1) under the age of 18; or 2) age 18 or older and "incapable of self-care because of a mental or physical disability" at the time that FMLA leave is to commence.

Therefore, based on the applicable FMLA regulations, two factors must be present before an employee can take FMLA leave to care for his/her son or daughter: the adult child must be incapable of self-care and have a physical or mental disability.

Incapable of Self-Care

Under the regulations, the adult child must require active assistance or supervision to provide daily self-care in three or more activities of daily living or instrumental activities of daily living.  The regulations define these activities as follows:

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 telephones and directories, using a post office, etc.

There is no magical line here.  Temporary conditions, such as minor pregnancy-related conditions, a bout with the flu, a broken bone or routine surgeries, typically would not result in being incapable of self-care.   On the other hand, plenty of others would: an adult child with Down syndrome, brain damage, serious illnesses or other developmental disabilities that are long term in nature.  It also could include a child who is involved in a catastrophic accident that impacts activities of daily living.  Notably, in Salas v. 3M, a federal trial court recently refused to dismiss an FMLA lawsuit when the evidence showed that that the employee's adult daughter had learning disabilities, was unable to cook, got lost easily and might have been harmed at birth by an oxygen shortage.  As you can see, it doesn't take much to create a fact issue in these cases, which is a scary proposition for employers.

Physical or Mental Disability

The regulations also require that the adult child have a physical or mental disability as defined by the ADA regulations.  Under the EEOC's recently expanded interpretation of disability under the ADA Amendments Act of 2008 (ADAAA), an employee’s burden to establish a disability is much lower, and the "new" ADA allows for the possibility that a short-term impairment lasting fewer than three to six months may very well be considered a disability.  Put another way, it has become a whole lot easier to establish that an adult child has a disability.  In turn, it arguably is easier now for an employee to take FMLA leave to care for an adult child.

As to the common conundrum of whether pregnancy-related complications constitute a disability, we recently received some guidance from the courts.  Just last month, in Serednyj v. Beverly Healthcare, LLC, a federal appellate court ruled that pregnancy-related complications can rise to the level of a "disability" within the meaning of the ADA.  However, such complications, if they are of limited duration and dissipate once a woman gives birth, may not be "substantially limiting."  Under these circumstances, the court held that no "disability" exists.  See my colleagues' analysis of the Serednyj case here.

Since we're on the topic of pregnancy, another helpful case to keep in mind is Novak v. MetroHealth Medical Cntr (pdf).  There, a federal court found that the two weeks the adult child suffered from a bout of postpartum depression failed to establish that she had a disability.  Although the Novak decision predates the ADAAA, it nevertheless is helpful guidance when determining the conditions that potentially fall in and out of the ADA.

Insights for Employers

So, what approach should employers take?  Since the ADAAA makes it significantly easier for employees to establish a disability, employers are in an incredibly difficult spot when determining whether an adult child is incapable of self-care and has a disability.  Take a situation involving a car accident.  Although the adult child might in the hospital with broken bones and other related injuries (rendering them incapable of self-care), can we determine within days after the accident whether they are considered disabled?  After all, the regulations tell us this FMLA determination must be made at the time FMLA leave is needed.  Seriously -- how can employers make an educated determination at this point?  Often, it will be difficult, if not impossible, to do so.  Therefore, we must make a reasoned decision based on the facts as we know them within that short window in which we must designate leave as FMLA protected or not.

Keep some of following best practices in mind when analyzing an employee's request for leave to care for an adult child.  I welcome more, if you have any that have worked for you (jsn@franczek.com):

1. Set aside the misconception that an employee cannot take FMLA leave for an adult child.  Information is critical.  When the FMLA medical certification is returned to you, insist that you have a clear picture of the adult child's medical condition, the three or more activities of self-care they are unable to perform, and a good sense that the condition might be rise to the level of a disability under the new standards of the ADAAA.   
2. Set aside the misconception that an employee can take FMLA leave to be present for the birth of his/her grandchild or to care for the daughter after a normal childbirth.  This is not covered by the FMLA.  Only where significant pregnancy complications arise do we need to turn our attention to a possible FMLA situation.
3. Conditions that may appear short-term but serious can be a trap for employers.  Take, for instance, Patton v. Ecardio Diagnostics LLC (pdf).  There, the adult child was in a car accident, causing two broken femurs, a small hole in her lung, and a small hole in her bladder.  She recovered, but required a wheelchair to ambulate for more than one year.  Unfortunately, the employer did not have the benefit of knowing what the child's prognosis would be long term.  It had to make the decision to designate FMLA leave (or not) within the first few weeks when the child was in the hospital.  In these situations, employers are wise to look closely at the child's current medical condition and take an extremely broad view as to the possibility that a court might later find the child to have been disabled during the FMLA period.
4. When the disability and self-care issues are obvious, don't push it.  If an employee needs leave to care for a child with Down Syndrome or mental retardation, do you really need extensive documentation?  Remember, the FMLA does not require you to obtain medical certification for every absence.  Let common sense (and a little compassion) rule here.

An Employee's Right to Take FMLA Leave after a Natural Disaster

The FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives.  (See our recent post where a court dismissed an employee's FMLA claim where the employee sought leave to clean up his mom's basement after a flood.)  However, employers clearly have the right to voluntarily provide leave in these situations pursuant to their personnel policies.

That being said, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a "serious health condition" and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Here are some examples:

• A natural disaster causes an employee's chronic condition (such as stress, anxiety or soaring blood pressure) to flare up, rendering them unable to perform their job.  Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play.
• An employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster.  Take, for instance, an employee's parent who suffers from diabetes.  If the event took out power to the parent's home, the employee may need to help administer the parent's medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.

Could a Natural Disaster Cause a Serious Health Condition That Implicates the FMLA?

In addition to those reasons above, employees who are physically or emotionally injured as the result of a natural disaster also may be entitled to FMLA leave.  Moreover, their impairments may be significant enough to rise to the level of disability, resulting in potential employer obligations under the Americans the Disabilities Act (ADA).  These medical conditions may arise several weeks and months after the natural disaster hits.  Thus, employers should be vigilant in watching for signs of an employee who is unusually scarred by a natural disaster. 

Take, for example, post-traumatic stress disorder.  A condition often associated with military servicemembers returning from active duty, PTSD also can arise out of a natural disaster.  In this situation, an employer would not only be required to consider its FMLA obligations for such an employee, but its ADA obligations as well.  Here, the employer may need to provide FMLA leave if the employee is unable to perform their job duties as a result of a serious health condition.  It also may be required to provide reasonable accommodations for the employee, such as the option to telecommute or work from home, or provide leave to attend counseling or receive treatment for the medical condition.  (See our comprehensive summary (pdf) of the ADA Amendments Act, which will affect these situations.)

Insights for Employers

Our prayers go out to our fellow Americans affected by the recent spring tornadoes and flooding.  As the media already has reported, employers in the south continue to do their part to assist their employees with personal tragedies arising out of this life-changing event. 

In the time ahead, employers must familiarize themselves with employment issues arising out of the natural disaster that may impact their business operations and implement appropriate procedures that will adequately protect themselves against liability in the future.  Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.  (A previous FMLA podcast of ours covers how an employer should respond to a request for FMLA leave.  It might be helpful here.)

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.

A. This clearly is a grey area in the law at present. Very few courts have given us guidance as to whether travel time itself (to care for a family member with a serious health condition) qualifies as part of the FMLA leave allotment.  My quick take: If it's clear that the employee will be required to care for the family member beginning on Day X, then a court likely would find that the travel necessary to get to the destination by Day X is so intertwined with the need for leave that it should be considered part of the protected leave as well.

Although not directly on point, take the recent case of Lane v. Pontiac Osteopathic Hospital.  In this case, the plaintiff was required to care for his mother, cook her meals and transport her to medical appointments.  However, the Court supported the employer's denial of FMLA leave when the plaintiff sought leave to clean up his mom's flooded basement.  Interestingly, the plaintiff claimed that his mother's condition would have worsened had he not taken time off to clean the basement. 

In finding for the employer, the court grappled with the concepts of "direct" vs. "indirect" care for a family member.  The court's ruling implies that where acts like "travel" to the family member are so intertwined or necessary to the need for leave itself, it should be considered part of the FMLA leave.  See also Tayag v. Lahey Clinic Hospital, Inc. (pdf), which upheld a denial of FMLA leave because a significant portion of a trip to meet with a "faith healer" actually was spent visiting socially with family.

Take Joe Lane, a medical technologist for Pontiac Osteopathic Hospital.  Joe, who lived with his mother, sought and was granted FMLA intermittent FMLA leave for six months to care for his mom, who suffered from diabetes, high blood pressure, weight loss and arthritis.  He needed leave from time to time to provide her food and transport her to doctors' appointments, which he did without issue for the next four months.

For Joe, when it rains, it pours.  Literally.  Right into his mother's basement.  Joe was absent for four consecutive days and, in violation of the Hospital's personnel policies, he failed to call in his absences.  Thereafter, he informed the Hospital that he would need additional time off to clean up flooding in his mom's basement.  He claimed that the "flood cleaning days" should be excused because his mother had hepatitis and the stagnant water was a "breeding ground" for the disease.  The Hospital disagreed and fired him.

At that moment, Joe's FMLA claims went down the drain. 

1.  Cleaning the flood was not listed among his enumerated duties in the medical certification form;

2.  Joe had not established that cleaning mom's basement met the definition of "caring for" a family member with a serious health condition;

3.  Joe could not show that his mom's hepatitis was in danger of being aggravated if he did not clean the basement immediately; and

4.  In any event, Joe's request for leave to clean his mom's basement failed to put the employer on notice of the need for FMLA leave.

The Impact of the Court Ruling

In recent years, courts have expanded the scope of the "caring for" FMLA leave entitlement, often finding new and, at times, creative ways to afford employees FMLA leave.  The Lane ruling slaps back that expansion, thereby drawing more of a distinct line between those activities that provide "direct" care to the family member (e.g., providing a meal or transport, or sitting bedside) and those that provide "indirect" care (e.g., salvaging mom's basement).  Although the former regularly qualify for FMLA leave, the latter typically do not.

That being said, one is left to wonder whether Joe would have fared better (either at work or in court) had his request for a 3-day absence not come on the heels of a 4-day unexplained absence.  Could Joe have better articulated that his "direct" care for mom was so intertwined with the "indirect" duties that they are inseparable?  We're left to wonder.

Insights for Employers

The Lane decision reminds employers to seek answers to the following when determining whether an employee is "caring for" a family member under the FMLA:

• Has the employee put us on notice of the need for FMLA-qualifying leave (as opposed to a general leave of absence, which may not be protected by law)?
• Are the "caring for" responsibilities identified by the employee in this instance enumerated on the latest medical certification on file?  If not, do we have an obligation to seek recertification?
• What is the harm to the family member if this assistance is not provided?
• Can the family member perform these "caring for" duties him/herself?
• Are the responsibilities to be performed on this occasion so intertwined with other duties in which we previously have allowed FMLA leave? 

 Thoughtfully thinking through these questions will help you avoid the flood, whenever it comes.

Last week, federal judge Joseph L. Tauro issued two blockbuster rulings, striking down the federal Defense of Marriage Act (DOMA) as a violation of the equal protection rights of same-sex couples married under state law. Gill v. OPM (.pdf) and Commonwealth of Mass. v. HHS (pdf). DOMA provides that for purposes of federal law, "marriage" is limited to opposite-sex unions: 

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

As noted in the Gill opinion, DOMA's definitions of "marriage" and "spouse" is incorporated into "at least 1,138 different federal laws," including the Family and Medical Leave Act. Gill focused on DOMA as applied to the FMLA rights of federal employees because the plaintiffs in Gill worked for the federal government, but did not discuss how striking down DOMA would affect the FMLA rights of private-sector employees. 

A preliminary review of the FMLA regulations might seem to suggest that the Department of Labor already defines "spouse" in terms of applicable state law rather than the definition set forth in DOMA. Specifically, 29 C.F.R. § 825.122(a) provides:

Spouse. Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.

However, in a 1998 opinion letter interpreting this language, the Department made it clear that DOMA's definition of "spouse" limits FMLA rights to opposite-sex spouses. If DOMA no longer applies, then it appears that the definition of "spouse" under the FMLA would be determined by the law of the state in which the employee resides. In Massachusetts and several other states, that would include same-sex spouses.

Insights for Employers

Here is what employers should take away from this ruling with respect to the FMLA:

• The Massachusetts ruling does not affect the rights of same-sex couples who reside in states that do not recognize same-sex marriage.
• The FMLA does not allow employees to take leave to care for a partner of either sex absent a legally-recognized marriage. 
• In states that do recognize same-sex marriage, employees may now be able to argue that they are entitled to FMLA leave to care for their same-sex spouses. 
• However, it remains to be seen whether the rulings will be upheld on appeal and followed by other circuits. Employers in affected states should stay tuned.