Can I Take FMLA to Care for My Special Needs Child?

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Birth is a joyous event for most parents, but when something goes wrong it can cause turmoil in your personal and professional life. No one expects their baby to be injured during birth, but it happens more often than many people realize. If your child has been diagnosed with cerebral palsy, autism, Erb’s palsy, or another condition that requires your full attention, you may be able to take a leave under FMLA to care for them.

If you’ve had a child recently, are expecting one, or you are wondering how to care for a child with special needs, you should know that you may qualify to take an extended time off from work to care for them under the Family and Medical leave Act (FMLA).

Coping with a birth injury is not only stressful, it’s expensive. Many therapies and treatments aren’t covered by insurance. If your baby was injured or has an illness, the last thing you need is to lose your job when you’ve got so many medical bills to cover. FMLA may be unpaid leave, but you can use any vacation or sick time you’ve accrued, and at least when your leave is over you’ll have the security of knowing you still have a job to return to.

Certain employees can qualify to take up to 12 weeks off without pay and return to their position at the same pay and without suffering any negative consequences. Knowing this information can help to make childcare easier for you during a critical period in your newborn’s life, and it may help you decide to have children in the future.

Who Qualifies Under FMLA?

Not all employees will qualify to take family leave under the FMLA, but many are covered under it. The Act applies to businesses that employ more than 50 people and to employees who have worked for at least 1,250 hours for their employer continuosuly over the last 12 months. The employer must also employ 50 people within a 75-mile radius, meaning they can’t simply increase their worker distribution to avoid affording benefits they owe to their employees.

Parents or Guardians

The biological parents, step-parents, or legal guardians of minor and adult children may qualify for FMLA. In order to qualify you must:

  • Work for an employer that has at least 50 employees working within 75 miles
  • Have worked at least 1,250 hours for this same employer over the prior year
  • Have at least one year job seniority.

You are also required to have the intention to return to your job when your FMLA time has run out. You’ll need to give your employer 30 days notice that you intend to take your leave in most situations, though this does not apply to the parents of special needs children.


Children who qualify for care under the FMLA should meet the following conditions:

  • Must be a “son or daughter” of parents qualified to take a leave of absence
  • May be biological, stepchildren, foster, adopted children, or legal ward
  • The child must be unable to care for themselves when the leave under the Act begins

Many parents take an FMLA leave when they have a newborn, but others will also take time off to care for their child if they have a serious medical condition, must travel for medical care, or if another medical emergency that incapacitates their child arises. The children who are covered may be above the age of 18, so long as their condition is serious and they meet the above qualifications.

How Many Times Can I Use FMLA?

The amount of time that an employee can take off resets every 12 months, but it does not roll over. This means it’s possible for an employee to take multiple leaves of absence under the FMLA.

FMLA and Special Needs Children

If your child has special needs, you may be struggling to juggle their appointments, the demands of your household, and the demands of your job. If this describes you, FMLA may be the right option for your situation.

You can take up to 12 weeks of FMLA leave to care for your special needs child, and this includes unplanned leaves for sudden health emergencies. You also have the right to request that your work schedule be temporarily reduced while you are caring for your child. The conditions a child could have that may qualify you for leave include:

  • Developmental disabilities
  • Autism spectrum disorders
  • Chronic illnesses
  • Long-term illnesses
  • Psychiatric conditions

You will need to keep records of any communications you have with your job or doctors regarding your FMLA leave. This documentation will need to be in writing, and you will also need to document your child’s illness or condition. You will also need to document the fact that your leave will not exceed 12 weeks, and be sure to let your Human Resources manager know when you plan to return to work.

One added bonus of taking FMLA to care for your special needs child is that as of August 2019, the Department of Labor ordered new protections for the parents of special needs children. According to the DOL, if you’re eligible for FMLA, your employer is required to let you attend IEP meetings. If you’ve ever had to try to juggle work and IEP meetings, you understand what a huge benefit this is.

What Can I Do if I’m Not Covered Under FMLA?

Unfortunately, not all parents will be qualified for coverage under FMLA, which can add another layer of hardship to a difficult time. However, there may be additional state policies or laws covering medical leave. If your child requires care due to a disability, it may be due to a birth injury. A birth injury settlement could present a way for you to obtain the necessary financing to care for your child.

Getting a Birth Injury Settlement

Some chronic conditions that children face, such as cerebral palsy, are linked to birth injuries they suffered while being delivered. These leave their victims and their families with lifelong conditions and a burden of ongoing medical expenses.

If your child was injured at birth due to a preventable mistake, don’t be afraid to ask a specialized lawyer for help getting a settlement that can cover your child’s expenses. They can help collect any evidence around the birth of your child that can determine if there is a birth injury case to pursue.

While the protections afforded under the FMLA don’t extend to all workers, there are options available to those who aren’t covered to make their child care duties easier. When working with a reputable birth injury lawyer, they also won’t have to worry about paying for anything related to the case until their lawyer has won it. This can make pursuing a settlement a viable option for families that thought they would have had to shoulder the burdens of long-term medical care on their own.




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