Parents of Kids with CP: Your Rights Under the FMLA

Legal Help, Tips for Parents

Working parents of kids with CP often face unique challenges. For example, you may need to take several weeks off work while your child recovers from surgery. If you work holidays, there are likely no qualified caretakers available to watch your child on those days. There are hundreds of nerve-wracking ways that caring for your child with CP can clash with your job, and even more ways it might threaten your job security. Fortunately, the Family and Medical Leave Act (FMLA) was passed to protect people like you.

About the FMLA

The FMLA was enacted in 1993, in an effort to balance the conflicting demands of the work and family environments. It requires covered employers to grant unpaid, job-protected leave to employees for family and medical reasons that qualify under a certain criteria. Common examples of such reasons include personal or family illness, pregnancy, and military leave.  The employee on leave is guaranteed job security during this time, and employee health benefits are unaffected. The Wage and Hour Division of the Department of Labor oversees the administration of the FMLA.

Basics of the FMLA

The FMLA grants eligible employees 12 weeks of unpaid leave during any 12-month period. These 12 weeks can be used all at once, but are usually split into smaller, periodic segments. In theory, this allows the employee time to deal with health conditions, either personal or within their family; recovery periods following illness or surgery; and matters surrounding pregnancy, childbirth, childcare, foster care, or adoption. Psychiatric disorders, chronic physical conditions, and lifelong conditions like CP or autism also qualify for unpaid leave.  This can be a lifesaver for many special needs parents, allowing them to be present during important medical, emotional, and psychological milestones.

To be eligible for FMLA leave, employees must first work at a business for a minimum of 12 months – and must clock at least 1,250 hours during that period. Both public and private sector companies are covered by the FMLA, but companies must employ at least 50 workers within a 75-mile radius to be eligible.

Potential Issues with FMLA Leave

Some parents of kids with CP have criticized certain shortcomings of the FMLA. One common complaint is that employees often need FMLA leave within the first 12 months of employment – before they are technically eligible. Parents of special needs children will almost certainly have relevant commitments, like physical therapy sessions or medical appointments, long before the 12-month mark.

Another common complaint is that, in many ways, FMLA leave is up to the employer’s discretion. For example, there is no set standard for what constitutes “proof” of a medical condition.  An uncooperative boss may demand further documentation, even after you’ve provided sufficient evidence of your child’s CP. Employers frustrated by your absence can technically create excuses and fire you, allegedly “for other reasons.” In certain circumstances, your boss can even decide that your absence is “undue” or overly “disruptive” and simply deny your leave.  Unfortunately, the effectiveness of the FMLA relies somewhat on your boss’s personality. It’s important to research your rights under the FMLA thoroughly – especially if you know that your boss can be difficult.

Further Resources

Wayne State University developed a helpful online information pamphlet about the FMLA. Bright Tots, an autism advocacy website, published this guide to the FMLA specifically for parents of special needs children. These two resources may offer answers to some of your questions about the FMLA. You can also contact the Department of Disability Services in your state and request an “advocate” for your case. Many advocates are lawyers and can help you understand your rights in the workplace.

If you have CP yourself, and are struggling to establish a tolerable workplace situation, consider researching the Americans with Disabilities Act of 1990. This is a civil rights law prohibiting discrimination based on disability. It only applies in certain circumstances, but there’s a big chance it can be invoked to defend your cause.

We wish you the best of luck in obtaining a fair and compassionate workplace situation! And we hope you’ll report back to us on your FMLA experiences, so we can share them with other families.

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