Tuesday, November 29, 2022

Caring for Adult Child with Drug Addiction May Qualify for FMLA

My employee asked to take time off under the Family Medical Leave Act (FMLA) to care for her drug addicted son, who is well over 18 but refuses to go through a rehabilitation program. Do I have to honor that request?

In general, FMLA is available to parents to care for their children who are under 18 or an adult dependent child, such as a son or daughter undergoing cancer treatment and needing help.

Essentially, the parent qualifies to take FMLA if the adult child is unable to care for his own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself to the doctor. These are considered major daily activities and instrumental activities.

FMLA

Under FMLA, if the adult son is incapable of self-care, needing active assistance of supervision, the parent may be entitled to take the leave. Major daily activities include grooming and hygiene, bathing, dressing, and eating.

“Instrumental activities,” however, include, but are not limited to: cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, etc.

Typically, protection is not available when the individual who is the addict is actively using the drugs; however, in this situation the addict wishes to stop using drugs outside of a rehabilitation program.

The rigors of trying to stop using drugs can cause a serious health condition. So on that note, an employer may still require an employee to submit written certification from a health care provider to substantiate that his/her leave is due to a serious health condition of the employee or the employee’s immediate family member.

If an employer is inclined to deny the use of FMLA in a situation like this, it is recommended to seek the advice of counsel to guide the employer through the process.

Drug Addiction

The National Institute on Drug Abuse has indicated that opioid use has become a public health crisis with devastating consequences, including increases in opioid misuse and related overdoses.

Indeed, more than 130 people die every day from overdosing on opioids. Questions like the one above are asked at the Labor Law Helpline periodically, and probably will be asked more.


Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff Contact: Dana Leisinger

Dana Leisinger
Dana Leisinger
Dana Leisinger joined the CalChamber in 2000 and currently serves as an HR adviser. She has advised employers on matters such as employment law, wrongful termination, discrimination, sexual harassment and wage and hour issues. She also has conducted seminars and training and guided employers through various levels of governmental investigations. Leisinger holds a J.D. from the McGeorge School of Law, University of the Pacific.

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