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Employees are requesting FMLA leave to care for their children for an expanding number of conditions. The Family and Medical Leave Act allows an eligible parent to seek FMLA leave to care for a child who has a serious health condition and is, therefore, incapable of self-care. A child is considered incapable of self-care when he or she is unable to perform daily activities and/or to attend school.
Two recent federal court decisions involved an employee seeking FMLA leave related to their child’s diagnosed Attention Deficit Disorder (ADD). Because an estimated five million children in this country are receiving medication and have been diagnosed with Attention Deficit Disorder, employers may face this issue in the future. The cases are instructive in identifying the approach an employer should take in screening FMLA requests based upon ADD.
In the first case, the federal district court for the Southern District of New York sent to a jury the question of whether the employer illegally denied an employee’s FMLA leave request for a son with attention deficit hyperactivity disorder (ADHD). The employee, Ola Jennings, initially sought FMLA leave to care for her son, Robert, who had ADHD, because she did not have a caregiver for him. The employer denied the leave saying that ADHD was not a serious health condition. The company did not ask any questions concerning Robert’s condition. Jennings then made a second request for a modified work schedule from 10:00 a.m. to
5:00 p.m.
without lunch, instead of
9:00 to 5:00
, in order to be able to take her son to school. The employer gave
Jennings
the option of working
9:00 to 5:00
or resigning.
Jennings
was terminated.
In scrutinizing the employer’s decision-making, the Court indicated that an employer could not automatically conclude that ADHD was not an FMLA-qualifying condition, without further inquiry. The court’s decision is a clear message that automatic denial of ADD-related FMLA leave, without investigation into the details of a child’s condition, and his ability to be active in day-to-day activities, may be considered an unlawful denial of FMLA rights.
A decision by the U.S. Court of Appeals for the Sixth Circuit on
December 30, 2003
, illustrates the analysis required by an employer when determining whether a child’s attention deficit disorder is a serious health condition. In the case, Jeffrey Perry sought twelve weeks of FMLA leave to care for his son during a summer because he was unable to find affordable day care that would meet his son’s special needs. His 13-year-old son, Victor, had been diagnosed with ADHD, ADD and learning disabilities. He took medication to treat his impulse control problems. He functioned at a third-grade reading level and a second-grade level in written language skills. Perry stated his son needed to be constantly monitored for safety reasons. When he requested leave, Perry did not supply medical certification. There was no medical documentation which supported Perry’s assertion that he was needed to care for his child.
The Court ruled that Victor was not incapacitated enough by ADD for the disability to be considered a serious health condition under the FMLA. In making the analysis, the Court considered aspects of the child’s ability to engage in regular daily activities. A need for behavioral supervision alone was not considered medically necessary care. The Court said “the comparative amount of supervision a child needs, standing alone, does not address the child’s ability to engage in regular daily activities.”
These decisions continue federal court emphasis on substance rather than form in reviewing FMLA claims. Rather than denying FMLA leave requests automatically for a diagnosed medical condition, the Courts hold employers to a duty to determine whether the medical condition is, in fact, incapacitating to an employee or qualifying family member. Again, as a cautionary note, no medical provider indicated that the parent’s care was necessary in either of these cases. If the child’s Health Care Provider had provided such an indication, the FMLA would seem to require employers to seek a second opinion regarding the need for parental care, if the employer is interested in denying the request for leave.
For more information about this important issue, call (414) 423-1330 or e-mail educational services.
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