Even New Yorkers who understand labor law might not grasp the full scope of the Family and Medical Leave Act and the rights they have under it. FMLA allows people to have maternity and even paternity leave for a designated period without fear of losing their jobs; they can receive time off when they are caring for a sick loved one; but there are many other circumstances under which a worker can use FMLA. One is if the worker has an adult son or daughter who has a serious health condition.
Knowing how son or daughter is defined and the cases in which FMLA is applicable is key to using the law for this purpose. FMLA is generally not available for people to take time off to care for a son or daughter who is a legal adult age 18 or older. However, it is possible to take leave to care for a biological, adopted, foster child, stepchild, legal ward, or a child to whom the parent is in loco parentis (the responsible adult), if the child is 18 or older and cannot care for themselves due to a physical or mental disability when FMLA will be used.
To take FMLA leave to care for the adult child, the child must be determined to be incapable of caring for themselves and is considered a son or daughter under FMLA. The son or daughter must have a serious health condition and need to be cared for because of that serious health condition. For the condition to be considered a serious health condition, the person must need inpatient care or continuing treatment. It is not necessary that the condition be directly linked to the disability for the parent to be able to use FMLA. If the adult child cannot care for their own basic needs, including hygiene, nutrition, medical issues and safety because of the health problem, then the parent can meet the criteria as needed for the adult child’s care. Psychological factors and the child’s comfort can also be considered.
Having an adult child who is ill or disabled can be a complicated matter for people who are simultaneously worried about their job. FMLA is in place to help those who need it and that includes people who have a disabled adult son or daughter. The definition of “son or daughter” is flexible, as elucidated above. For assistance with a case involving this part of labor law, a lawyer experienced in employee benefits and FMLA can help.
Source: U.S. Department of Labor, “Fact Sheet #28K: ‘Son or Daughter’ 18 years of age or older under the Family and Medical Leave Act,” accessed on Dec. 26, 2017