Can I file FMLA for your child over the age of 18, for a serious health condition?
My daughter went to the emergency room on Nov. 14th, the E.R. doctor didn't do a culture test to determine what it was...but diagnosed her with strep-throat and wrote her a perscription for penicillin, without pain medicine...and she was in a lot of pain. I looked after her for 5 days and still managed to go to work. Her symptoms were no better...actually they got worse. I took her back to the emergency room early Friday morning, 3:00a.m, the 19th of Nov. and they did a culture on her this time and diagnosed her with an absess tonsil...which was a life threating illness...her right tonsil that was absessed was so swollen that it almost touched her left tonsil and I had called off to take care of her that day which was the 19th. I had no sleep worried sick, not knowing that this illness could have killed her. (Re-mind you she had been sick for 6 days now) Had a doctor's slip, for the day I missed, when I returned back to work. I asked for FMLA papers for her specialist (doctor) to fill out...HR told me it wasn't covered for a child over the age of 18, not unless she was mentally disturbed or handicaped because she's able to take care of herself. I feel HR is wrong....because it doesn't say anything like that in our policy.
1 answer | asked Dec 4, 2010 2:50 PM [EST] | applies to Ohio
Answers (1)
". . . 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 age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence."
“Incapable of self-care” means that the individual "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). Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc ."
29 CFR 825.122(c).
If your company's policy incorporates the DOL's definitions, then it does not cover a child over 18 years of age. Even if your company's policy defined a son or daughter to mean one who is over 18 years of age, you probably will not be able to hold the company to it unless the policy has the force of a contract. Most employer policies do not have the force of a contract.
posted by Neil Klingshirn | Dec 5, 2010 08:06 AM [EST]
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