Q: One of our employees, a front desk receptionist, maintains an erratic work schedule because she must attend to her autistic son. In short, her son throws a tantrum at school if his mom does not personally drop him off and pick him up from school. For instance, he hides under a table, refuses to participate, and becomes very aggressive when his mom doesn’t drop him off and pick him up.
The difficulty we have is this — our employee not only misses the first hour of work and another hour in the middle of the work day, but she claims she needs the entire day off to attend to her son. First, is autism a serious health condition under the FMLA? And if so, are there any limitations we can place on the employee’s need for FMLA leave in these situations?
A: These are not uncommon questions posed by employers, who wonder whether they are required to provide intermittent FMLA leave to an employee in this kind of situation.
To be clear, employers generally don’t deny that autism is a serious health condition (since it often is considered a disability under the ADA). However, employers struggle with an employee’s unpredictable attendance in situations where it presents a burden on staffing, like the example above.
Is Autism a Serious Health Condition?
Generally speaking, courts have found that autism is a serious health condition.
As we know, an otherwise eligible employee can take leave to care for a child with a serious health condition. Under the FMLA regulations, a serious health condition includes a period of incapacity which is “permanent or long-term due to a condition for which treatment may not be effective.” A “period of incapacity” includes the inability to attend school or perform other regular daily activities due to the serious health condition, including treatment or recovery. 29 C.F.R. § 825.114.
In the example above, there appears to be sufficient facts for a jury to conclude that the employee’s son likely suffers from a serious health condition because he is has a permanent medical condition rendering him unable to participate at school in certain situations.
If Autism is a Serious Health Condition, are there any limitations we can place on the employee’s need for leave?
Put aside the question about whether autism is a serious health condition, as that’s a definition over which the attorneys can argue. What you’re really worried about is whether your front reception desk gets properly staffed and whether you have to accept your employee’s erratic schedule on days when she tells you she must attend to her son. In short, there are not many limitations you can place on your employee if they need FMLA leave in these situations to care for her son. But there are tools available to employers:
1. Analyze the medical certification. In many instances, the certification will articulate the kind of care the employee is required to provide to the autistic child. Does the certification appear to cover the need for transport, drop off and pick up? If it is unclear, follow the FMLA’s cure process to obtain the information you need.
2. Rein in the excess time off. Does the certification require your employee to take the entire workday off (or even a significant portion of the workday) for trips to school with her son at 8am and at 2pm? If so, why does the certification make such a pronouncement?
Assuming the cert does not contain this information, the employer should consider having a candid conversation with the employee about the need for leave for the entire or even a significant portion of the workday. Keep in mind that intermittent leave is required only where it is medically necessary. FMLA leave from work from the period of ~9am to 2pm does not appear to be medically necessary, so if you can’t come to an understanding with your employee as to the additional time during the workday, employers should require that the employee cure the certification (to obtain additional information about the need for leave), and clarify the certification, if necessary.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.