Q. I thought parents could takefor their sick children only if the child was under 18 (or disabled). Now I have a mother who called off and is requesting leave because her 30-year-old daughter was the victim of domestic assault and is in the hospital with severe injuries. Do I have to grant leave? This employee’s family is always having some sort of emergency. — P.T., Pennsylvania
A. It probably depends on whether the 30-year-old daughter is “disabled” under the ADA.
The FMLA permits an eligibleto care for a son or daughter with a serious health condition. The FMLA defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility or continuing treatment by a health care provider. The FMLA says employees can take leave for a son or daughter who is either (1) under age 18, or (2) age 18 or older and incapable of self-care because of a mental or physical disability.
In this case, the employee can take leave to care for her 30-year-old daughter only if the daughter is suffering from a serious health condition and is incapable of caring for herself because of a mental or physical disability. The Department of Labor’s regulations define “incapable of self-care” as meaning that the individual 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.
The ADA Amendments Act of 2008 makes it easier for people to establish they have a qualifying “disability.” You should carefully analyze whether the employee’s daughter would qualify as “disabled” under the ADA and, if so, grant the employee FMLA leave to care for her daughter.
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