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How Do I Use FMLA To Care For My Child?

by | May 6, 2022 | Employment Law, Family Medical Leave Claims, Wrongful Termination |

Can I take FMLA leave from my job to care for my son or daughter?

Best Medical Leave Lawyer Answer: The Family and Medical Leave Act (“FMLA”) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons, including caring for children. An employee must be needed to provide care for his or her child because of that child’s serious health condition in order for the employee to take FMLA leave. (Best Law Read: Do I Qualify For FMLA Leave?; FMLA & Coronavirus: Who Can I Miss Work To Care For?)

Who qualifies as a child under the FMLA?

Best FMLA Attorney Answer: The FMLA still uses the binary terms “son or daughter,” which it defines as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. See 29 USC § 2611(12). The FMLA’s broad definition of “son or daughter” is designed based on the fact that a great number of children are cared for by a person other than a biological parent. Thus, an employee who has day-to-day responsibility for caring for a child may be entitled to leave even if that worker lacks any biological or legal relationship to the child.

What type of condition will trigger my FMLA rights to care for my child?

Best Employment Law Attorney Answer: An employee, who meets the other qualifications to be covered under the FMLA, is entitled to FMLA leave to care for a child under eighteen merely by letting the employer know that the employee’s child has from a “serious health condition,” which, as defined by statute, can be an illness that lasts as little as four days. See 29 U.S.C. § 2612(a)(1)(C); 29 C.F.R. § 825.114(a)(2)(i); Caldwell v. Holland of Tex., Inc., 208 F.3d 671, 673 (8th Cir.2000) (finding a qualifying serious health condition based on a three-year-old son’s sudden ear infection);

Brannon v. OshKosh B’Gosh, Inc., 897 F.Supp. 1028, 1037 (M.D.Tenn.1995) (finding a qualifying serious health condition where child with a fever was instructed by a doctor to stay home from day care from Friday through Tuesday).

Can I use FMLA leave to care for my adult child?

Best Family Medical Leave Act Lawyer Answer: The FMLA has a different standard for adult children. The plain language of the FMLA differentiates between children under the age of 18 and children 18 years of age or older by requiring an extra element of disability. “In comparison, to be eligible for leave to care for an older child, the child not only must have a serious health condition but also must lack the capacity to care for himself or herself due to a disability (which requires demonstrating an impairment, identifying a major life activity, and showing how the impairment substantially limits the major life activity).” Navarro v. Pfizer Corp., 261 F.3d 90, 102 (1st Cir. 2001). To that end, the only way for an employee to take leave to care for an adult child is if that child is incapable of caring for him or herself.

What type of care needs to be provided in order to be protected under the FMLA?

Top Employment Law Firm Answer: Importantly, employees will not be protected if they take FMLA leave and use the leave for reasons other than for personal medical reasons or caring for a family member with serious medical conditions. While the statutory language in the FMLA does not expressly define what “to care for” means, interim regulations at 29 C.F.R. § 825.116(a) (1993) provide:

The medical certification provision that an employee is “needed to care for” a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a seriously ill child or parent receiving inpatient care.

Further, the final regulations also emphasized that “care” includes providing psychological comfort to those “receiving inpatient or home care.See 29 C.F.R. § 825.116(a) (1995); see also Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078, 1087 (9th Cir. 2002).

Do I have to be physically with my child to qualify for FMLA leave?

Best Medical Leave From Work Lawyer Answer: For the most part, yes. Most courts that have addressed the issue have held that of FMLA leave can only be used when the employee is in physical proximity to the family member being cared for. For example, in Tellis v. Alaska Airlines, Inc., 414 F.3d 1045 (9th Cir.2005), the employer fired an airline mechanic, who requested FMLA eave to be with his pregnant wife but flew to another state to retrieve his car during the leave. Under these facts, the United States Court of Appeals for the Ninth Circuit held “some actual care” is actually required for the leave to be protected by the FMLA: “Caring for a family member with a serious health condition ‘involves some level of participation in ongoing treatment of that condition.’” Id. at 1047 (quoting Marchisheck v. San Mateo Cnty., 199 F.3d 1068, 1076 (9th Cir.1999)). The Ninth Circuit further held that under the FMLA, “caring for” a family member involves participating in conduct that is “in close and continuing proximity to the ill family member.” Id.

Likewise, in Baham v. McLane Foodservice, Inc., 431 F. App’x 345, 348–49 (5th Cir. 2011), the Fifth District Court of Appeals held: “Here, the record shows that Baham was not with his daughter during the disputed period. Indeed, he was in another state for more than two weeks. Moreover, the work that he was doing while away-including mowing the lawn and cleaning his house, in addition to preparing the house by padding the furniture, does not qualify as care under the FMLA.”

Now, FMLA does not require constantly caring for the ill family member to qualify for protected leave and the FMLA leaves room for common sense. For example, in Briones v. Genuine Parts Co., 225 F.Supp.2d 711, 716 (E.D.La.2002), the United States District Court for the Eastern District of Louisiana held that the FMLA was violated when an employer fired an employee for staying home with three healthy children for two days while his wife cared for a sick child in the hospital:

Although Briones did request leave to baby-sit his healthy children, he did so only because his wife’s presence was required at the hospital in order to care for their child who did suffer from a serious health condition. Thus, based upon the Court’s understanding of the case at this juncture, Briones would have been entitled to FMLA leave had he been at the hospital caring for Calixto himself instead of using leave to facilitate Ms. Briones’ fulfilling that role. In light of this factual scenario, GPC’s characterization of Briones’ leave request as one of merely “baby-sitting healthy children,” an activity not covered under the Act, focuses the inquiry far too narrowly.

Id. at (Emphasis in original).

In Call v. Fresenius Med. Care Holdings, Inc., 534 F.Supp.2d 184, 196-97 (D.Mass.2008), the United States District Court for the District of Massachusetts held that the fact that the employee admitted taking a nap and not actively taking care of the family member during her night shift nap did not disqualify her from FMLA protections because “she did not have to be caring for [her sick child] the entire day in order to merit FMLA leave, since a jury could believe that Plaintiff was unprepared to go into work that evening after spending the entire day caring for her daughter.”

And, in Brunelle v. Cytec Plastics, Inc., 225 F.Supp.2d 67, 77 & n. 13 (D.Me.2002), the United States District Court for the District of Maine denied a motion to dismiss based on after the employer pointed to the undisputed fact that the employee went out for drinks at the time he was supposed to be working:

The first argument—that leave was not “medically necessary”—relies on a crabbed view of the facts. While Brunelle was indeed discovered drinking with friends on the evening of March 28, it is undisputed that commencing at 7 a.m. that day he undertook a daylong vigil at his critically ill father’s bedside, assisting in medical decision-making. On that day, without a doubt, he “provide[d] care or psychological comfort to an immediate family member with a serious health condition.” 29 C.F.R. § 825.203(c). No more was required.

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Nor does it matter that Brunelle technically was available to work, having left the hospital prior to the start of his shift, and was discovered having drinks with friends instead. It is undisputed that Brunelle had commenced his hospital vigil at 7 a.m. on March 28, had not slept all day, and would have been required to work a twelve-hour shift starting at 7 p.m. It is a reasonable inference that, while he was able to unwind with friends, he was not prepared to work.

As you can see, a little of common sense goes a long way in resolving this issue.

What should I do if my job fires me for taking FMLA to care for my kids?

Best Ohio Employment Lawyer Answer: The most important thing that you can do if your Family Medical Leave Act (FMLA) rights are being violated, be it FMLA interference or FMLA retaliation, is to call the right attorney as quickly as possible to schedule a free and confidential consultation. As you can see from the above, the FMLA and other related employment laws are very complicated. The best option is call our top attorneys in Cleveland, Cincinnati, Columbus, Toledo, Youngstown and Detroit. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under the FMLA, ADA and Ohio employment law. Our lawyers will be here to get you the FMLA leave that you are entitled to or fight to get you paid for being wrongfully fired.


This employment law website is an advertisement. 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 fire me after leaving to care for my sick son or daughter?”, 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.

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