December 15, 2011

Employees often request to take leave for reasons that, at first blush, may appear to qualify under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 (“FMLA”).  Closer scrutiny, however, often reveals that the reason for the requested does not qualify for leave under the FMLA.  One such example pertains to employees who request leave related to the birth of a grandchild.

Eligible employees may take a maximum of twelve (12) workweeks of FMLA leave in a twelve (12)-month leave period for the following reasons:  (1) the birth or care of their newborn; (2) the care of a child newly placed in the employee’s home via foster placement or adoption; (3) the care of a seriously ill spouse, child or parent; and (4) the employee’s own serious health condition.

The FMLA does not contemplate that employees take FMLA to care for a grandchild.  Novak v. MetroHealth Medical Center, 503 F.3d 572, 581 (6th Cir. 2007).  While caring for a child is covered under the FMLA, the FMLA differentiates between minor children (under eighteen years of age) and adult children (eighteen years of age or older).  A parent is entitled to leave to care for an adult child only if that child is “incapable of self-care” because of a disability.  According to the FMLA regulations established by the Secretary of Labor, “incapable of self-care” means that the adult child “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs).”  ADLs encompass “adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating,” while IADLs “include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.”  The regulation further states that “physical or mental disability” means a “physical or mental impairment that substantially limits one or more of the major life activities of an individual” as these terms are defined by the regulations for the Americans with Disabilities Act (“ADA”).

Thus, an employee may take FMLA leave to care for an adult child only if that child is “disabled” for purposes of the ADA and that adult child is incapable of self-care.  Rarely, will an adult child meet this definition for reasons related to childbirth.  Nonetheless, should an employee request leave to care for their adult child for reasons related to childbirth, the employer should request a medical certification from the adult child’s treating healthcare provider to confirm that the adult child meets the above definition.  The focus is on the adult child’s medical condition – not the grandchild.

Simply because a request is related to family and/or medical reasons does not necessarily mean that the request qualifies for FMLA leave.  As in the case of an employee’s request to take leave related to the birth of a grandchild, closer scrutiny is advisable.