Question: We have an employee who’s asking to leave work early and use the last hour of her normal schedule to pick up her son and accompany him to therapy sessions that will take place two days per week for 12 weeks. Would this time off be covered by the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA)?
The ADA prohibits discrimination based on disability—including discrimination against employees with associational disabilities—but the FMLA will likely govern in this scenario because it requires covered employers to provide employees with unpaid, job-protected leave for qualified family and medical reasons. To be granted leave in this case, the employee must meet eligibility criteria, and her son’s condition for which therapy sessions are needed must be a “serious health condition” as defined by the FMLA.
FMLA leave eligibility requires an employee to have worked for a covered employer at least 12 months. FMLA-covered employers include public agencies, public and private elementary and secondary schools, and private employers with 50 or more employees who worked in 20 or more workweeks in either the current or previous calendar year. The employer must have at least 50 employees working within 75 miles. The employee must also have worked 1,250 hours for the employer in the 12 months before their FMLA leave commences.
If an employee is eligible for FMLA leave, one of the accepted protected leave categories is caring for a child, spouse, or parent with a “serious health condition.” The FMLA defines mental and physical health conditions as “serious health conditions” if they require (1) inpatient care or (2) continuing treatment by a healthcare provider. A serious mental health condition requiring continuing treatment by a healthcare provider can include chronic conditions like anxiety, depression, or dissociative disorders that cause occasional periods where an individual is incapacitated and requires treatment by a healthcare provider at least twice a year.
Because the child in the provided scenario is being treated twice a week, it seems likely the employee seeking FMLA leave can take leave to accompany her son to appointments. Approval of that leave will depend, however, on the certification from the appropriate healthcare provider that leave is necessary to care for the family member with a serious health condition.
Bottom line: Although the ADA can be triggered if an employer makes adverse decisions about an employee with an associational disability based on stereotypes or assumptions about the employee’s family member’s condition, the FMLA governs when employees can take leave to address qualified family and medical conditions. The employee’s ability to take FMLA leave in the provided scenario will depend on whether she meets eligibility requirements and whether her son’s condition that necessitates therapy sessions is a “serious health condition.”
Margaret Lohmann is an attorney with Steptoe & Johnson PLLC in Bridgeport, West Virginia, and can be reached at 304-933-8344 or maggie.lohmann@steptoe-johnson.com.