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Top FMLA Lawyer: Can I Take Leave To Care For My Adult Child?

On Behalf of | Jul 29, 2014 | family medical leave claims |

Best Ohio Medical Leave Attorney: Who can I take FMLA leave to care for? Do I qualify for FMLA leave? How long can I take off work to care for my son or daughter? What is the best way to find an employment law lawyer in Ohio?

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Last week, our FMLA attorneys blogged about a recent case out of the Seventh Circuit Court of Appeals, Gienapp v. Harbor Crest. (Click here to read that FMLA blog). If you choose not to read the full blog, let me give you a quick recap of the facts. Suzan Gienapp applied for FMLA leave from her job at Harbor Crest to care for daughter was undergoing treatment for thyroid cancer as well as her grandchildren. In our employment law blog last week, our attorneys addressed whether Gienapp could get FMLA leave to care for the grandkids. You will have to read that blog to get the answer. (Again, here is that FMLA blog).

But, there was another argument that was raised by that employer that was just too much fun not to circle back and discuss. In fact, after reading the decision, I just could not get the children’s book by P. D. Eastman, “Are You My Mother?” out of my mind. For anyone with children, or who was a child in the last 54 years since it was published, you know this book. A little bird hatches while the momma bird is away and wanders out of the nest, asking a kitten, a hen, a dog, a cow, and even a car, boat and plane, “Are you my mother?” This book on its very deepest level poses the question, how do we know what we do not know until we know it – even the most prime relations in life like parenthood.

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So, now you are thinking what does a picture story book published in 1960 have to do with the Family Medical Leave Act (“FMLA”)? Well, the creative defense attorneys flipped P. D. Eastman’s classic story in several key aspects. First, instead of asking “are you my mother?” these crazy defense attorneys posed this question for Gienapp, “are you my daughter?” And, instead of looking at it from just after hatching (or birth), these lawyers argued that the existence of daughterhood legally ended at emancipation. That’s right, their argument was that when your child turns 18, he or she is no longer your child. (I suspect that there are a vast number of parents sending a lot of money to college campuses around the country that would dispute this). Crazy, right?

The Seventh Circuit Court of Appeals thought so too:

Section 2612(a)(1)(C) provides that an employee may take time off “[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” No one doubts that Gienapp took leave as a result of the illness of her “daughter” as ordinary people understand that word: Trish Hoff is Gienapp’s biological child.

Harbor Crest observes that Hoff was emancipated, an adult, and married; it contends that such a person does not count as a “daughter” no matter how normal people use that word. “Son or daughter” is a defined phrase. It means:

 a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is—

(A) under 18 years of age; or

(B) 18 years of age or older and incapable of self-care because of a mental or physical disability.

 29 U.S.C. §2611(12). Trish Hoff is over 18 but in 2011 was “incapable of self–‐‑care because of a … physical disability.” She meets the definition of a “daughter”. But Harbor Crest does not want us to apply the full statutory definition. It contends instead that Hoff does not count as a “daughter” because she was married and Gienapp was no longer “standing in loco parentis”. That snippet of the statute is not the sole means of qualifying a person as a child, however Any biological child is treated as a “son or daughter” if either the age condition or the disability condition is satisfied. The “in loco parentis” language is preceded by “or”. That is to say, a biological child or an adopted child or a foster child or a stepchild or a legal ward or a person over whom the employee is acting in loco parentis can be a statutory “son or daughter”; it is unnecessary to satisfy all of these possibilities. That Gienapp is no longer in loco parentis to Trish Hoff does not make her less Gienapp’s biological child (or more capable of self-care).

The best part of this is that implicit in defense counsel argument about how normal people use the term daughter, is that that they are not “normal” people. I second that.

However, I will concede that for the purposes of FLSA application only, that a biological child 18 years of age or older would not fall within the statutory definition of son or daughter if he or she is not “incapable of self-care because of a mental or physical disability.” But, then again, the only time a parent seeks to take Family Medical Leave is when your child is incapable of self-care because of a mental or physical disability. As such, while this distinction can be made to say when your daughter is really not your daughter; it is really a distinction without a difference.

So, with that said, when you kiss your daughter at bedtime, and she asks, “will I always be your little girl?” you can confidently respond “you will always be daughter.” Even under the FMLA.

The FMLA allows qualified employees as much as 12 weeks leave without pay from work every 12 months. To qualify, you must have worked for your employer for at least the 12 months and worked at least 1250 hours during that time. Also, note that FMLA only applies to companies that employ 50 people or more within a 75 mile radius.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.

Disclaimer:

The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, LLC, Brian Spitz, or any individual attorney.