“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the 28th blog in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Denying an employee FMLA leave to care for an adult son or daughter without considering whether that son or daughter is incapable of self-care.

The FMLA allows an employee to take leave to, among other things, care for a child with a serious health condition. But that “child” need not be under the age of 18 to qualify. A qualifying child need only be either under age 18 or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time FMLA leave is to commence. In an earlier blog post, we looked at how an employer can inadvertently mis-step by assuming that an older son or daughter does not qualify. Recent case law shows that there are other wrinkles in these situations of which employers should keep in mind.

In Gibson v. New York State Office of Mental Health, No. 6:17-CV-0608, 2019 U.S. Dist. LEXIS 204021 (N.D.N.Y. Nov. 25, 2019), an employee who worked at a state-run psychiatric center requested FMLA leave to care for her 31-year-old daughter and her 7- and 8-year-old grandsons following the daughter’s surgery. The employer denied the employee’s FMLA request, informing her that she was ineligible for FMLA leave because her daughter was over age 18.

The employee sued in federal court, asserting willful interference with her FMLA rights. The employer moved for summary judgment, arguing in part that there was no proof it had committed a willful violation of the law. However, the court disagreed.

The court reasoned that a jury could believe that the employer denied the employee’s request solely based on her daughter’s age without considering whether the daughter was incapable of self-care. Based on those facts, the court found that the employee had the right to have a jury decide whether the employer’s actions were a willful violation of the law.

What can we learn from this? It is important to carefully evaluate whether an employee qualifies for FMLA leave and to not let preconceived notions interfere in that decision making, particularly when it comes to who qualifies as an eligible family member. With an adult son or daughter’s care at issue, an employer must always evaluate whether that son or daughter is incapable of self-care.

The United States Department of Labor issued an Administrator’s Interpretation that further explains adult son or daughter status, which provides helpful insight, here.