By Michael L. Dodd, Partner and PIA Association Counsel, Ferrara Fiorenza PC
An employee comes to you and asks for leave to care for her 26-year-old daughter who is mentally ill. Is your employee entitled to take the time off under the Family and Medical Leave Act (FMLA)?
New guidance issued by the U.S. Department of Labor (DOL) Wage and Hour Division, reminds employers that the answer is probably “yes.” (See U.S. Department of Labor’s, Wage and Hour Division, Fact Sheet # 28O: Mental Health Conditions and the FMLA [May 2022].)
Generally speaking, the FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a “son or daughter” with a serious health condition. The FMLA defines 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 either “under 18 years of age; or … 18 years of age or older and incapable of self-care because of a mental or physical disability. (Emphasis added.)
According to the DOL guidance,
“A parent may use FMLA leave to care for a child 18 years of age or older who is in need of care because of a serious health condition, if the individual is incapable of self-care because of a mental or physical disability. For practical purposes, some mental health conditions may satisfy both the definition of “disability” and the definition of “serious health condition,” even though the statutory tests are different.
It should be noted that the FMLA regulations define “incapable of self-care” to mean that “the individual requires active assistance or supervision … [for] self-care in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs).” Activities of daily living include “activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping … using telephones and directories… etc.” The new guidance notes that certain mental conditions “should easily be concluded” as being characterized as incapable of self-care, including:
“… major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.”
In the example at the top of this article, if the employee’s daughter will need active assistance and supervision with respect to hygiene, bathing, dressing, as well as cooking, cleaning, shopping, etc., she would meet the test of being incapable of self-care due to her disability. But, as noted in the guidance, that is not the end of the inquiry.
While we have already established that the daughter could have a serious health condition as defined by the FMLA (i.e., incapacity due to mental illness), the question then becomes whether your employee is entitled to FMLA leave to care for that daughter because she is “in need of care” from the parent. This question must be answered by a physician.
Under the FMLA, the phrase “needed to care for” includes providing “psychological comfort and reassurance” that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care.
Applying this standard to our example, if, in the physician’s opinion, the daughter would be psychologically comforted by having her parent present, the parent is technically “needed to care for” the daughter. Stated differently, when the doctor certifies that the daughter would be psychologically comforted by the presence of the parent, the criteria for FMLA leave eligibility is met.
If you have any questions or need any assistance, please contact Michael L. Dodd, Association Counsel, Ferrara Fiorenza PC, (315) 437-7600, mldodd@ferrarafirm.com.
Tim Freeman, President
Print & Graphic Communications Association
Office: (716) 691-3211
Cell: (716) 983-3826
