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Jul30

Caring for Legally Blind Spouse

We have an employee whose wife is legally blind. Does FMLA allow for an employee/spouse of a legally blind person to take intermittent leave to assist with daily activities that the legally blind spouse can not do?
If the condition is permanent is there a frequency in which a person must be seen by a medical provider?

Thanks for posting such an interesting question! This situation is not necessarily covered under FMLA, but it may be. It depends upon whether the wife has a *serious health condition* under FMLA regulations or simply a disability under ADA.

Blindness is always a disability under ADA. The Americans with Disabilities Act defines a disability as a condition that significantly interferes with a major life function, such as reading, mobility, shopping, taking public transportation, etc. ADA requires you as an employer to make reasonable accommodations for an employee with a disability. ADA does not require you to make any accommodations for an employee with a disabled spouse.

However, some blind persons also have a serious health condition. Under FMLA, a serious health condition requires either an overnight stay in a hospital, an incapacity of 3 days or more, continuing treatment or medical supervision with at least two appointments per year. (See the detailed info on the link below.) Your employee would be entitled to continuious or intermittent FMLA to care for his wife and take her to medical appointments if his wife had a serious health condition, under the FMLA definition.

What does all this mean? Lets look at two examples: Maria has been blind since birth, due to a congenitial defect. She is perfectly healthy except for her blindness and does not require any continuing treatment or medical supervision.  Maria has a disability under ADA, but she does not have a serious health condition under FMLA. Her spouse if not entitled to leave from work. Even if Maria cannot perform certain tasks like shopping or cooking, her spouse is not entitled to leave to perform those tasks for her.

Lisa is legally blind due to macular degeneration, a serious health condition under FMLA that requires ongoing treatment.  Her husband is entitled to unpaid FMLA leave to take her to medical appointments or to help her bathe, dress, etc. if she is unable to do so alone. He is probably not entitled to FMLA leave to pick up his suits from the drycleaner, because his wife is incapable of running errands. FMLA is permitted only to care for the spouse, not to provide childcare or perform duties that a healthy spouse might perform.

Different rules apply if the wife is a member of the active military, or was injured while on military duty.

Read more about FMLA at: http://www.dol.gov/whd/regs/compliance/whdfs28.pdf

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This entry was posted on Friday, July 30th, 2010 at 7:39 am and is filed under
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