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Fmla

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mommalebeau

Junior Member
What is the name of your state (only U.S. law)? North Carolina

Hello, I am curious as to what kind of legal options I may have. My eighteen year old son was diagnosed with Non Hodkin's lymphoma just a couple of days before he turned 18 in November. Up to this point I have used vacation and personal time in order to care for him and be with him in the hospital during his treatments. I still have plenty of time available to me, however my company is trying to make me take FMLA. I am sure that I will not qualify because he is 18 and that if I am out with him they will fire me. I am only out approximately five days a month with him so I would not be able to receive my short term disability either. I am still working even from the hospital and am not behind in my work at all. So i really just need to know if they can force me to apply for FMLA? If so can they fire me if I am turned down and take the time off anyway even if I have vacation and personal time? If they can fire me will they have to pay me unemployment?
 


swalsh411

Senior Member
I didn't write this but you might find it useful in determing if your leave to care for your adult son woudl be covered by FMLA.

To determine whether the employee’s absences were protected by the FMLA, the court focused on the law’s definition of child. The FMLA defines a child to include both children under 18 and those who are "18 years of age or older and incapable of self-care because of a mental or physical disability." Under the FMLA regulations, the term "incapable of self-care" means that the person needs daily assistance or supervision to provide daily self-care in three or more of the "activities of daily living" (ADLs) or "instrumental activities of daily living" (IADLs). The regulations further define ADLs to include caring for one’s grooming and hygiene, bathing, dressing, and eating. IADLs include cooking, cleaning, shopping, taking public transportation, and paying bills. Based on this definition, the court determined that the son was incapable of self-care because he could not perform four IADLs both while he was in the hospital and after he was released. He could not cook, clean, shop, or take public transportation.

If your employer wanted to fire you then why would they ask you to apply for FMLA? That doesn't make any sense.
 

mommalebeau

Junior Member
I am not saying they WANT to fire me. I'm just trying to see what my options are. I was forced out of a job several years ago due to my own illness, I kow how large companies work. They don't like to pay insurance or disability.
 

swalsh411

Senior Member
Disability has nothing to do with this seeing as how you are not disabled. Is your employer aware of your son's age? It sounds like they are telling you that if you want to protect your job then you must apply for FMLA. That is not an unreasonable position for them to take and I suggest you consider it. Let me put it another way. NOT applying for FMLA doesn't offer you any advantage that I can see.
 

ESteele

Member
Your employer may be obligated under FMLA to have you complete the paperwork under these circumstances. I do not perceive a downside to your completing the paperwork.

Moreover, I do not know whether the fact your son has turned 18 disqualifies him under the statute. The DOL website provides the following definition:

Q: Who is considered an immediate "family member" for purposes of taking FMLA leave?
An employee's spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law." The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self-care" because of a mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).

U.S. Department of Labor - Wage and Hour Division (WHD) - The Family and Medical Leave Act

An argument can be made consistent with this definition your son’s cancer constitutes a physical disability limiting one or more of life’s activities and adversely affecting his ability for self-care.

In short, you would be in a better practical and possible legal position by applying for FMLA leave. From a job protection standpoint, you are definitely in a better position applying for FMLA leave. Moreover, as stated earlier, a possibility exists you may indeed be eligible for such leave which would afford you a greater level of job protection and increased flexibility to care for your son.

I sincerely hope that your son is fully healed and restored and that your overall situation works out excellently for you and your family.
 

mommalebeau

Junior Member
Thanks so much for the advice. I am just a little nervous as I am currently the only one in my family that is employed. If I lost my job it would be catastrophic for my family.
 

Betty

Senior Member
Go ahead & apply for FMLA. If approved, you will at least have job protection for up to 12 weeks within every 12 month period if needed.
 
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commentator

Senior Member
And if they terminated you for being absent from work---they'd have to do it after your weeks of FMLA were used up this year, but they could do it,

and if they did, you'd have to be willing to state that you are able and available and actively seeking another job, even if your son is very ill and needs you 24-7. Regardless of the family situation, in order to get unemployment benefits, which are considerably less than you can make working anyhow, you'd need to be able available and actively seeking other employment.

How about insurance? Is your son's health insurance contingent on your keeping this job? If so, I'd definitely work it out so that I didn't need to be with him enough to jeopardize the job as long as I could possibly do so. Granted, he needs the support of his family, but he might also need one parent working to keep him in benefits.
 

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