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Thread: FMLA and Autism

  1. #1
    Waitingme is offline Junior Member
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    Question FMLA and Autism

    Puerto Rico (Commonwealth but treated as a state in some laws like labor law - federal applies)

    Good day to all:

    I am a bit frustrated with my legal research specifically regarding the Family Medical Leave Act and taking for example a child with autism. I am a law student and cant find anything specific to autism and this benefit of the twelve weeks without pay. I found a case of Navarro v. Pfizer that does apply to parent's taking care of children over 18 (pregnant daughter) but I dont know exactly if autism would apply? I would assume so. If so, would it matter if the employee was hired before or after the condition was acknowledge? What rights exactly would the parent "taking care of" the child with a serious disability would have? How would the benefits apply? Is this a 12 week non pay benefit to leave per year? Would it be lawful to fire this person due to this condition? Also, but more on a social question, how many parent's of autistic children actually work outside their homes and have benefits for this situation? Is autism applicable for the FMLA? Are there any jurisprudence available?

    Thank you so much,
    Patiently Waiting Me.
  2. #2
    Beth3 is offline Senior Member
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    Is the autistic child over age 18 or under?

    If under, then it would depend whether the child's autism qualifies as a "serious health condition" as defined in the FMLA. (See 29 CFR 825.114). If the child is over age 18, then the parents' eligibility also depends on whether the child is capable of self-care.

    There are very mild forms of autism to quite severe. Just because someone is autistic doesn't automatically mean it is a serious or disabling health condition.
    A person, who is nice to you, but rude to a waiter, is not a nice person. (This is very important. Pay attention. It never fails.)
  3. #3
    Waitingme is offline Junior Member
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    Smile FMLA and Autism over 18 child

    Puerto Rico

    Yes, the child would be over 18 and the 50+ employees and 1250 hours are applicable. Autism as an unable to take care of himself or herself condition. I understand, from the jurisprudence that the test is higher if the child is over 18. What benefits exactly would this parent have? Is FMLA applicable and/or other laws? Any case that would be relevant on this? I have read 29 USCA 2611, 29 CFR 825.114(a).

    Thank you again.
  4. #4
    Beth3 is offline Senior Member
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    The parent would have exactly the same benefits as any other employee taking FMLA, which is up to 12 weeks of unpaid leave per calendar year or rolling 12-month period (depending on how the employer tracks it.) The parent may have the child's physician complete FMLA certification paperwork and the parent can apply for leave time, including intermittent FMLA or reduced schedule FMLA as supported by the doctor.

    Perhaps I'm missing something but I don't understand why you think this situation is so unique. Uncommon perhaps but not legally out of the norm.
    A person, who is nice to you, but rude to a waiter, is not a nice person. (This is very important. Pay attention. It never fails.)
  5. #5
    Waitingme is offline Junior Member
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    Smile

    It is not so unique, I just wanted to find a very specific case on the matter, since my professor wants me to inform on that, since i asked about autism and FMLA at class yesterday. She suuuurely loves me (yeah right)...hehe

    But I thank you for your promptness and diligency.
  6. #6
    Beth3 is offline Senior Member
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    Sorry, I can't get you a legal cite on a case involving autism and the FMLA. I'm not an attorney (I'm an HR professional) and I don't know if there is such a case - if there is, I've never heard of it. If an employee made an FMLA request for their autistic child, I'd handle it no differently than I would any other FMLA situation.

    Good luck with your professor.
    A person, who is nice to you, but rude to a waiter, is not a nice person. (This is very important. Pay attention. It never fails.)
  7. #7
    Waitingme is offline Junior Member
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    Wink

    Well if you are curious the conversation in class went as follows:

    Waitingme: "Professor what about autism, is it covered by the FMLA?

    Professor: "Do you think Autism is a serious medical condition"

    Waitingme: "Yes"

    Professor: " Are you suuuure?"

    Waitingme: "I'd think so, yes."

    Professor: "Well then, why don't you do an investigation for us for next class and tell us with all the cases you find what they say about autism?"

    Waitingme: (silent and in shock)

    Professor: "How does that sound"

    Waitingme: "It seems fantastic!!!" (sarcastically)

    The End. (isn't it lovely???)
  8. #8
    tigger22472 is offline Senior Member
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    Quote Originally Posted by Waitingme
    Well if you are curious the conversation in class went as follows:

    Waitingme: "Professor what about autism, is it covered by the FMLA?

    Professor: "Do you think Autism is a serious medical condition"

    Waitingme: "Yes"

    Professor: " Are you suuuure?"

    Waitingme: "I'd think so, yes."

    Professor: "Well then, why don't you do an investigation for us for next class and tell us with all the cases you find what they say about autism?"

    Waitingme: (silent and in shock)

    Professor: "How does that sound"

    Waitingme: "It seems fantastic!!!" (sarcastically)

    The End. (isn't it lovely???)

    As a law student you should have access to Westlaw or Lexis ... start with that.
  9. #9
    Waitingme is offline Junior Member
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    Cool

    Tigger, what makes you think i havent?
  10. #10
    Waitingme is offline Junior Member
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    Been at it (westlaw) since yesterday, needed some feedback.
  11. #11
    Beth3 is offline Senior Member
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    Maybe there aren't any cases.

    Not everyone who applies for FMLA ends up sueing.
    A person, who is nice to you, but rude to a waiter, is not a nice person. (This is very important. Pay attention. It never fails.)
  12. #12
    tigger22472 is offline Senior Member
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    Quote Originally Posted by Waitingme
    Been at it (westlaw) since yesterday, needed some feedback.
    Well IMO if you can't find it there there you aren't going to find case law to back you up in this opinion. You would then likely simply have to search articles because by your own admission it doesn't seem you can find it on westlaw.
  13. #13
    Waitingme is offline Junior Member
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    Cool

    Yeah, and maybe she knows and that is why she wants to make my life miserable searching and searching forever, she mentioned ADD or ADHD but of course it is not the same test - the child or adult being taken care of is functional and can work on his or her own, not like autism. I would at most compare it to Alzheimer, but usually that is a condition for the elderly whereas autism is quite frecuently dettected at a young age and can be defined even before the person is hired; the probability of the situation being sudden in alzheimer case is higher that in a diagnosis of autism.
  14. #14
    Waitingme is offline Junior Member
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    Wink

    Hahaha Tiger, you and my teacher should get together
  15. #15
    rmet4nzkx is offline Senior Member
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    First of all, we don't do homework here.
    Before you tackle the FMLA question you have to establish the level of disability under ADA which also has some allowances for care of dependents and also whether or not the adult child with ASD qualifies as disabled under social security, if so then there is a good case to qualify for FMLA but if not, it would be questionable.

    On a practical matter, any working parent with a disabled child, especially a disabled adult needs to access the services available to them and also work towards their child becoming independent or residing in an appropriate environment with access to appropriate suportive services, day programs, sheltered employment etc. Reserving FMLA for emergency situations or therapy/doctor appointments where the days could be spread out, otherwise 12 weeks will never be enough. Another option is if there is an ADA qualification to adjust work hours if possible, flex time, 4/10, off shifts etc. It is most difficult to manage all of this even with access to services and everyone including the disabled person cooporating, because often at least one of the parents also has some form of ASD, possibly high functioning, which may lead to misunderstandings.

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