DOL clarifies FMLA leave for an adult son or daughter

The U.S. Department of Labor recently issued an Administrative Interpretation clarifying its Family and Medical Leave Act regulations about leave to care for a son or daughter who is 18 years of age or older and incapable of self-care because of a mental or physical disability. The FMLA entitles an eligible employee to take up to 12 weeks of protected leave from work for personal and family medical matters, including to care for a son or daughter with a serious health condition. 'Son or daughter' is defined as a 'biological, adopted, or foster child, a stepchild, a legal ward, or a child of a persona standing in loco parentis, who is – (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.' A child under 18 years of age is a 'son or daughter' for FMLA-purposes regardless of whether the child suffers from a disability. This means that in order for an eligible employee to take FMLA leave for a son or daughter under 18 years of age, the employee need only show that s/he is needed to care for the child due to the child's serious health condition. However, a child 18 years of age or older must have a mental or physical disability and be incapable of self-care because of that disability in order to meet the definition of a 'son or daughter' for FMLA-purposes. If that definition is met, the parent must also be needed to care for the son or daughter, who is experiencing a serious health condition. In summary, the adult child must be 'disabled,' must have an active 'serious health condition,' and must be 'incapable of self-care' due to the disability, and the parent must be 'needed to care for' the adult child's serious health condition. The DOL articulated a four-part test for determining if an FMLA-eligible employee's leave to care for an adult child with a disability is FMLA qualifying leave.

(1) The adult child must suffer from a disability as defined by the Americans with Disabilities Act (ADA) (as amended by the Americans with Disabilities Act Amendments Act of 2008 (the ADAAA)). Recall that the ADA's definition of a disability was greatly broadened by the ADAAA.

(2) The adult child must be incapable of self-care due to that disability. According to regulations, someone is 'incapable of self-care' if s/he 'requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living' or ‘instrumental activities of daily living.'' Activities of daily living include, but are not limited to, grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include, but are not limited to, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, and using the post office.

(3) The adult child must have a serious health condition. As defined by the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

(4) The adult child must be in need of care due to that serious health condition. A parent may be needed to care for the adult child to fulfill basic needs such as medical, hygienic, or nutritional needs, but also to provide psychological comfort and reassurance that would benefit the child's serious health condition.

All four parts must be satisfied for an FMLA-eligible employee to be entitled to FMLA-qualifying leave. The DOL further clarified that the child's age at onset of the disability whether before or after the child's eighteen birthday is 'irrelevant to the determination of whether an individual is considered a ‘son or daughter' under the FMLA.' We already knew that the FMLA permits leave for a son or daughter who is 18 years of age or older and incapable of self-care because of a mental or physical disability. However, this Administrative Interpretation provides a helpful test employers can apply when evaluating whether requested leave qualifies for FMLA protections. Because the FMLA is complex and highly-regulated, it is prudent to consult with an employment attorney when there is doubt surrounding an employee's FMLA eligibility.    

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.