My employee asked to take time off under the Family and 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 leave 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 leave 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.
Under the 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 leave in a situation like this, it is recommended to seek the advice of legal counsel to guide the employer through the process.
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.