What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the ninth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Assuming an adult son or daughter is not a covered family member.

Employers may be familiar with the FMLA’s definition of a son or daughter as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age.” Less familiar is the FMLA’s protection for an adult son or daughter- those 18 years of age or older and incapable of self-care because of a mental or physical disability. The FMLA regulations adopt the Americans with Disabilities Act’s (ADA) definition of “disability.”

In Gienapp v. Harbor Crest, 756 F.3d 527 (7th Cir. 2014) the employee was granted FMLA leave in January to care for her adult biological daughter, who was undergoing treatment for thyroid cancer. The FMLA certification question on the expected duration of the leave was blank, and the employer did not request that the answer be completed. The certification stated that if the daughter did recover she would require assistance through July, and the employer inferred that the employee would not return to work at the end of the 12 weeks of leave. In mid-February, the employer hired someone else to fill the employee’s position. When the employee reported to work at the end of March, she was told that she no longer had a job. The employer contended that the employee was never qualified for FMLA leave because the employee’s daughter was “emancipated, an adult, and married.” The court determined that the employee’s daughter met the FMLA definition of “daughter,” because she met the disability condition of the “son or daughter” definition, even though she was over age 18.

In Gray v. Clarksville Health Sys., G.P., No. 3:13-00863, 2015 U.S. Dist. LEXIS 2455 (M.D. Tenn. Jan. 9, 2015) the court ruled in favor of the employer, in part, because the employee’s adult daughter’s state of being pregnant, as opposed to being incapacitated because of pregnancy, did not qualify as a “serious health condition” under the FMLA. The employee was terminated for ten unexcused absences in a twelve month period. One of the absences that the employee challenged in her FMLA retaliation claim was when her adult daughter was in labor. The court determined that the protections of the FMLA do not extend to an employee taking leave to care for her adult child simply because that child is pregnant, unless, for example, that child is incapacitated due to the pregnancy and is incapable of self-care.

Employers can minimize the risk of FMLA interference claims by carefully analyzing the facts related to FMLA leave to care for an adult child of an employee, keeping in mind the broad definition of disability under the ADA. The United States Department of Labor issued an Administrator’s Interpretation that further explains adult son or daughter status, which provides helpful insight: https://www.dol.gov/WHD/opinion/adminIntrprtn/FMLA/2013/FMLAAI2013_1.pdf

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