United States: Department Of Labor Issues New Guidance Clarifying FMLA Qualifying Leave

Executive Summary: The Department of Labor (DOL) has clarified the definition of "son or daughter" to now permit an eligible employee to take leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is incapable of self-care because of a disability, regardless of how old the child was when the disability commenced.  This clarification also impacts the FMLA's military caregiver provision. 

Background

The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition.  The FMLA defines a "son or daughter" as a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person 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."  The DOL's regulations state that the FMLA does not require that a biological or legal relationship exist between the employee and the child.  Thus, the regulations interpret "son or daughter" under the FMLA to include a child of a person standing in loco parentis – those with day-to-day responsibilities to care for or financially support a child. 

A child under 18 years of age is a "son or daughter" under the FMLA without regard to whether the child has a disability.  An eligible employee requesting FMLA leave to care for a son or daughter under 18 years of age must only show a need to care for the child due to a serious health condition.  

An Employee Seeking Leave to Care for an Adult Child

On January 14, 2013, the DOL issued Administrator's Interpretation (AI) No 2013-1, clarifying the definition of "son or daughter."  In order to meet the FMLA's definition of a "son or daughter," an adult child (i.e., one who is 18 years of age or older) must have a mental or physical disability and be incapable of self-care because of that disability.  In defining mental or physical disability, the FMLA regulations adopt the Americans with Disabilities Act's (ADA) definition of "disability" – a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC).  The AI also incorporates the Americans with Disabilities Act Amendments Act (ADAAA)'s expansions to the definition of disability, noting that the clear language of the ADAAA provides that the definition of disability is to be "construed in favor of broad coverage."    

Even if the adult child is disabled under the broader definitions of the ADAAA, the child must be incapable of self-care because of his or her disability in order to meet the definition of son or daughter.  The FMLA regulations define "incapable of self-care because of mental or physical disability" as when an adult son or daughter "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)."  Assuming the other requirements of the FMLA are met, a parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:

  1. has a disability as defined by the ADA;
  2. is incapable of self-care due to that disability;
  3. has a serious health condition; and
  4. is in need of care due to the serious health condition

It is only when all four requirements are met that an eligible employee is entitled to FMLA-protected leave to care for his or her adult son or daughter.

Age at Onset of the Disability Not a Factor

The AI clarifies that the age of the son or daughter at the onset of a disability is not relevant in determining a parent's entitlement to FMLA leave.  "An employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced."   

Impact On FMLA Leave To Care For Adult Children Wounded In Military Service

Under the military caregiver provision of the FMLA, a parent of a covered servicemember who sustained a serious injury or illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period if all other requirements are met.  The AI acknowledges, however, that the servicemember's injury may have an impact that lasts beyond the single 12-month period covered by the military caregiver leave entitlement.  The expanded definition of a disability under the ADAAA, as well as the clarification that when an adult son or daughter's disability commences is not determinative of whether he or she qualifies as a "son or daughter" under the FMLA, may allow parents of adult children who have been wounded or sustained an injury or illness in military service to take FMLA leave beyond that provided under the special military caregiver leave provision of the statute, as long as all other FMLA requirements are met.

Employers' Bottom Line:

With the ADAAA's broadened definition of "disability," there likely will be an increase in the number of adult children who can be classified as disabled and for whom parents may take FMLA-protected leave to provide care if the adult child is incapable of self-care at the time the FMLA leave is to commence. 

Companies should train their personnel who handle leave requests to ensure they are aware of the new interpretation.  Companies should also reexamine what method they utilize in computing FMLA leave and determine if, in light of the recent expansion, a different computing method would benefit the company.  For more information on methods of computing FMLA leave time, please see the article entitled Communication of FMLA Policy is Key in Defending FMLA Interference Lawsuit, published in FordHarrison's Spring Management Update, available at:  http://www.fordharrison.com/8154.   

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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