The Law @ Work

DOL Issues Guidance on FMLA Leave to Care for Adult Child

The Family and Medical Leave Act (FMLA) is one of the more challenging laws that human resource professionals are forced to deal with.  Among other things, it allows eligible employees to take up to 12 weeks of unpaid, job-protected leave to care for a spouse, child or parent suffering from a serious health condition.  The FMLA defines “child” as a son or daughter who is:  (A) under 18 years of age; or (B) 18 years or older and incapable of self-care because of a mental or physical disability.

This week, the U.S. Department of Labor issued guidance in the form of an Administrator’s Interpretation (AI) to clarify when a parent may take Family and Medical Leave (FML) to care for an adult child.  The AI, which can be found here, addressed three issues:  (1) the impact of the child’s age when the disability first manifests; (2) the impact of the Americans with Disabilities Act Amendments Act (ADAAA) on the definition of a “mental or physical disability”; and (3) the availability for FML to care for an adult child wounded in military service.

The AI was clear on the first issue:  the age of the child at the onset of a disability is irrelevant in determining whether a parent can take FML to care for his or her adult child.  Previously there had been some confusion as to whether an adult son or daughter’s disability must have existed before the age of 18 or whether such a disability could have first occurred in adulthood for purposes of determining whether the individual is a “son or daughter” under the FMLA.  The AI cleared up this confusion.  Parents may be eligible for leave to care for an adult child who suffers from a disability that originated before he or she turned 18 as well as one that manifested after age 18.

The second issue addressed the impact of the ADAAA on the definition of a disabled adult child under the FMLA.  As many readers are aware, passage of the ADAAA in 2008 significantly expanded the class of individuals who are “disabled” for the purposes of federal disability law.  The AI emphasized that the expanded definition of a “disability” provided for by the ADAAA applies when determining whether an adult child is disabled for purposes of the FMLA.  As with the ADAAA, impairments need not severely restrict a “major life activity” to qualify as a disability, and conditions that are episodic or in remission, such as epilepsy or cancer, would still be considered disabling even when symptoms are not currently manifesting.  There is also no minimum duration required for an impairment to be a disability.

The fact that an adult child is suffering from a disability, however, is not enough to trigger FMLA protection.  The adult child also must be “incapable of self-care.”  The FMLA regulations define “incapable of self-care” to mean that “the individual requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs)” (click here and review the answer to question # 4 for information on what qualifies as an ADL or IADL).   So, if an adult child with a disabling condition needs no assistance or supervision with ADLs or IADLs, his parents are not entitled to FML to care for the child (our apologies for the alphabet soup).  If the child later needs assistance or supervision in 3 or more ADLs or IADLs because of his or her disabling condition, parental FML would be appropriate.

Finally, the AI addressed parental FML for adult children wounded in military service.  The FMLA provides for 26 weeks of military caregiver leave in a single 12 month period to care for a returning servicemember who sustains a serious injury or illness in military service.  The AI explains that where a parent takes 26 weeks of military caregiver leave to care for a wounded adult child, that parent may be entitled to an additional leave in a subsequent FMLA leave year if the child is still incapable of self-care due to a mental or physical disability.

In the end, this is likely not a huge change from what employers are already doing.  Indeed, much of the AI is consistent with federal case law in Massachusetts that’s been in place since 2001, so there is not a lot of change for our Massachusetts readers.  Even so, FMLA compliance continues to be one of the biggest headaches for employers.  Not surprisingly, we address FMLA developments frequently.  You can read previous FMLA-related posts here.

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