Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
I have an employee who was placed on Family and Medical Leave (FMLA) to care for an estranged child. However, the employee has been posting pictures on Facebook showing him with his child during activities like site-seeing and fishing. Is this an abuse of FMLA?
A qualified employee may use up to twelve (12) workweeks of leave during any 12-month period to care for his or her son or daughter if that son or daughter has a serious health condition. 5 CFR § 630.1203. A serious health condition means an illness, injury, impairment, or physical or mental condition that involves inpatient care, continuing treatment by a health care provider, which may include a period of incapacity of more than 3 consecutive calendar days that involves at least two or more treatments by a health care provider or treatment that results in a regimen of continuing treatment or a period of incapacity or treatment due to a chronic serious health condition. 5 CFR § 630.1202. Federal regulations also define a son or daughter to mean a biological or adopted child, foster child or step child under 18 years of age or, if 18 years of age or older, incapable of self-care because of a mental or physical disability. 5 CFR § 630.1202.
An employer may require that a request for FMLA leave is supported by evidence that is administratively acceptable to the Agency. 5 CFR § 630.1206. The Agency, therefore, may require that the request to care for a son or daughter over the age of 18 be supported by acceptable evidence that the son or daughter is incapable of self care.
The employer also may require medical certification supporting the FMLA leave. 5 CFR § 630.1207. The medical certification shall include the date the serious health condition commenced; the probable duration of the serious health condition or that it is chronic with an unknown duration; the appropriate medical facts regarding the serious health condition, including information about the incapacitation, examination and treatment that may be required for this condition; and, a signed statement from the health care provider that the son or daughter of the employee requires psychological comfort and/or physical care coupled with a statement by the employee regarding the care he will provide and the estimate of the amount of time needed to care for his son or daughter. 5 CFR § 630.1207(b).
If the employee has submitted this information to the Agency, then the Agency may not request new information from the health care provider, although a health care provider representing the Agency may contact the health care provider who completed the certification, with the employee’s permission, for clarification of the medical certification. 5 CFR § 630.1207(c). To remain entitled to FMLA leave to care for his son or daughter, the employee must comply with any requirement that his son or daughter submit to an examination to obtain a second or medical certification from a health care provider other than the individual’s health care provider. 5 CFR § 630.1207(f).
It is not relevant to the issue of whether the employee may use FMLA leave to care for his son the fact that the father has or has not cared for his son during the past twenty years so long as that son, who is presumably over 18 years old, is incapable of self care because of a mental or physical disability and meets the definition of a son under the regulations. That the father is posting pictures on Facebook showing the father and son site seeing and fishing also may not be relevant should these activities be shown to be part of the psychological comfort related to the son’s recovery from the serious health condition.
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