DOL Issues New Guidance on the FMLA Rule for Caring for Adult Children

Posted by Grant T. Collins on January 23, 2013

Blog Pic - Adult Child with Disability.jpgOn January 14, 2013, the U.S. Department of Labor (“DOL”) issued a new Administrator’s Interpretation on who qualifies as an adult “son or daughter” under the Family and Medical Leave Act (“FMLA”) when an employee seeks protected leave to care for that individual.

FMLA entitles an eligible employee to take up to 12 workweeks of unpaid leave during a 12-month period to care for a son or daughter with a serious health condition. The definition of “son or daughter” includes individuals over the age of 18 if:

  1. the individual has a disability as defined by the ADA (as amended by the ADA Amendments Act of 2008 (ADAAA));

  2. the individual is incapable of self-care due to that disability, which means that he or she “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’”;

  3. the individual has a serious health condition; and

  4. the individual is in need of care due to the serious health condition.

Child’s Age at Onset of Disability Is Not Relevant

The Administrator’s Interpretation makes clear that FMLA leave is available even if the employee’s child developed the disability after reaching the age of 18.  In short, FMLA applies to caring for adult children if they meet the requirements set forth above.

More Adult Children Will Qualify as “Disabled” Under the Amended ADA

The Administrator’s Interpretation reminds employers that the ADA’s definition of “disability” has been substantially broadened by the ADAAA.   For example, there is no minimum duration for an impairment to be considered a disability, and an impairment that is in remission can still be considered a disability if it would substantially limit a major life activity when it is active. Even so, FMLA leave is only available if the adult child is incapable of self-care due to a disability and needs care due to a “serious health condition” under the FMLA regulations.

As an example, an employee’s 25-year old son with diabetes qualifies as having a disability under the ADA, but if he lives independently and does not need assistance with any daily activities, he will not be considered an adult “son” under FMLA. However, if he becomes unable to walk and care for himself, he will meet the definition and a parent could then take FMLA leave to care for him if such care is needed for a serious health condition.

Bottom Line

While an Administrator’s Interpretation does not carry the same weight as a regulation or judicial opinion, it does offer detailed guidance to managers applying the FMLA’s provisions in the context of employees caring for adult children.  Employers should study its contents carefully and ensure that qualifying parents are afforded FMLA leave.

Court Clarifies Timing Calculation for FMLA Retaliation Claims

Posted by Dennis J. Merley on March 20, 2012

Blog Pic - Stopwatch.jpgThe Latin expression “post hoc, ergo propter hoc” (“after this, therefore because of this”) is often cited as justification for claiming retaliation when an employee is fired within a month or two of filing a workers compensation claim, returning from a FMLA leave, or reporting allegedly illegal activity.

Recently, however, the Eighth Circuit Court of Appeals (which hears cases arising in Minnesota) ruled that where two months separate the protected activity and the termination, the employee needs more than the mere sequence of events to establish a connection between the two events.

This Will Be the Last Time

Mary Ellen Sisk, a Studio Manager at a Picture People retail store, took a 10-day leave under the Family and Medical Leave Act (FMLA) on June 3rd due to hip pain. During the leave, her condition worsened and she ended up having surgery on both hips, requiring that she remain off work for an additional 8 weeks.

Sisk returned to work with no restrictions but apparently struggled enough that co-workers immediately expressed concerns to management. On her third day back, company managers expressed concerns about Sisk’s health, asked her to return to her doctor and suggested that she should think about quitting and then reapplying when she was truly healthy enough. Sisk got up, tore up her name tag and walked out, believing she had just been fired. She sued the company in federal court for FMLA retaliation and appealed to the Eighth Circuit after her case was dismissed before trial.

The key to a retaliation claim is proof of a connection between the protected conduct and the adverse action (i.e., the “causal connection”). Sisk confidently asserted that the timing of the constructive termination -- just three days after her return from leave -- was sufficiently suspicious to allow the connection to be made. The appeals court disagreed, explaining that where timing is the only factor connecting the protected activity and the adverse action, the law must evaluate the employer’s actions when they first learn of the protected activity, not when that activity actually takes place or concludes. Therefore, the question to be addressed was whether a constructive termination occurring more than two full months after the employee begins an FMLA leave could establish a causal link between the two.

The Court noted that in previous cases of this type, they had ruled that a two-week separation might be “barely enough” to establish a connection, and that one month was too long. As such, the separation of two months in this matter was clearly too great to establish a causal connection between the two events and the dismissal of the case affirmed accordingly. Sisk v. Picture People, Inc., Case No. 10-3398 (8th Cir. Feb. 28, 2012).

Bottom Line

Employers should always give careful consideration to how it will look when they terminate an employee soon after he or she engages in protected activity. This case tells us, however, that as long as there is nothing to support the retaliation claim other than the Latin phrase quoted earlier, the employer will have a very respectable case and should end up happy.

FMLA Proposed Regulations: Potential Changes Ahead

Posted by Dennis J. Merley on February 21, 2012

Blog Pic - Capitol Dome.jpgOn January 30, 2012, the Department of Labor (DOL) issued proposed revisions to regulations involving the Family Medical Leave Act (“FMLA”).  To a significant degree, the proposed regulations simply memorialize certain interpretive changes announced last year regarding eligibility for exigent circumstances and military care giver leave.  The remaining proposals are an interesting mix of tweaks and fine-tuning.

Exigent Circumstances

The new proposed regulations memorialize last year’s announcement by the DOL that exigent circumstances leave would now cover the families of members of the regular armed forces (e.g., army, navy, air force), but that the exigency had to arise from deployment in a foreign country.  Foreign deployment will now include deployment in international waters.  Other proposed include expanding the time available for “Rest and Recuperation” from five days to fifteen, adding attendance at a funeral as a qualifying post-deployment event and permitting leave for child care and school activities even if the employee is not the parent of the deployed military member’s child.

Military Caregiver

The proposed regulations also memorialize interpretative changes announced last year for military care giver leave.  These changes included covering care provided to veterans for up to five years following release from service and including aggravation of preexisting conditions as a serious illness or injury warranting care. Other changes include:

  • Providing that military care giver leave need only begin within the five years after discharge; the employee could continue exhausting the allotted 26 weeks into the sixth year if needed;

  • Expanding "serious injury or illness" to cover a physical or mental condition:
    • for which a VA Servife Related Disability Rating of 50 percent or higher was issued, or
    • where the condition substantially impairs the veteran's ability to secure or follow a substantially gainful occupation.
  • Allowing non-military health care providers to certify the serious illness or injury arising from military duty.

General Provisions

The proposed regulations also seek to eliminate a recent rule allowing employers to delay reinstatement from FMLA leave if it was a physical impossibility (e.g., a flight attendant seeking to return to an assignment on an airborne plane) and remove the certification forms from the regulations (even though the DOL would still maintain them on their web site and encourage their continued use).

Bottom Line

The DOL is seeking public comment on the new regulations, after which they will reexamine the proposals and likely issue a final version.