On January 14, 2013, the U.S. Department of Labor (“DOL”) issued a new Administrator’s Interpretation on who qualifies as an adult “son or daughter” under the Family and Medical Leave Act (“FMLA”) when an employee seeks protected leave to care for that individual.
FMLA entitles an eligible employee to take up to 12 workweeks of unpaid leave during a 12-month period to care for a son or daughter with a serious health condition. The definition of “son or daughter” includes individuals over the age of 18 if:
- the individual has a disability as defined by the ADA (as amended by the ADA Amendments Act of 2008 (ADAAA));
- the individual is incapable of self-care due to that disability, which means that he or she “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’”;
- the individual has a serious health condition; and
- the individual is in need of care due to the serious health condition.
Child’s Age at Onset of Disability Is Not Relevant
The Administrator’s Interpretation makes clear that FMLA leave is available even if the employee’s child developed the disability after reaching the age of 18. In short, FMLA applies to caring for adult children if they meet the requirements set forth above.
More Adult Children Will Qualify as “Disabled” Under the Amended ADA
The Administrator’s Interpretation reminds employers that the ADA’s definition of “disability” has been substantially broadened by the ADAAA. For example, there is no minimum duration for an impairment to be considered a disability, and an impairment that is in remission can still be considered a disability if it would substantially limit a major life activity when it is active. Even so, FMLA leave is only available if the adult child is incapable of self-care due to a disability and needs care due to a “serious health condition” under the FMLA regulations.
As an example, an employee’s 25-year old son with diabetes qualifies as having a disability under the ADA, but if he lives independently and does not need assistance with any daily activities, he will not be considered an adult “son” under FMLA. However, if he becomes unable to walk and care for himself, he will meet the definition and a parent could then take FMLA leave to care for him if such care is needed for a serious health condition.
Bottom Line
While an Administrator’s Interpretation does not carry the same weight as a regulation or judicial opinion, it does offer detailed guidance to managers applying the FMLA’s provisions in the context of employees caring for adult children. Employers should study its contents carefully and ensure that qualifying parents are afforded FMLA leave.