Posted on 01/29/2013 at 12:50 PM by Sara Laughlin
(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 ADAs 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 childs 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 childs age at onset of the disabilitywhether before or after the childs eighteen birthdayis 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 employees FMLA eligibility.