On January 14, 2013, the U.S. Department of Labor's Wage and
Hour Division ("WHD") issued guidance to clarify the
definition of an adult "son or daughter" (18 years of age
or older) under the Family and Medical Leave Act
For an employee to be eligible for FMLA leave to care for his or
her adult son or daughter, the son or daughter must:
Have a disability as defined by the Americans with Disabilities
Be incapable of self-care due to his or her disability;
Have a serious health condition; and
Be in need of care due to the serious health condition.
The WHD's Guidance clarifies three main points.
The age of onset of a son or daughter's disability is
irrelevant when determining the parent's entitlement to
While the broader definition of "disability" under
the Americans with Disabilities Act Amendments Act of 2008 applies
to FMLA leave for an adult son or daughter, the individual must
also be incapable of self care at the time the employee commences
FMLA leave available to employees whose child becomes disabled
during military service may be expanded if the injury has a lasting
Thus, the determination of whether an employee is eligible for
leave to care for an adult son or daughter is a fact-specific
inquiry that depends on the individual's condition at the time
the employee commences leave.
Employers should consider this guidance when presented with an
FMLA leave request from an employee. Given the complexity of these
requirements, employers who need assistance should contact
As most employers know, the Family Medical Leave Act (FMLA) allows employees to take up to 12 weeks of leave for their own or a family member's serious health condition and up to 26 weeks for military caregiver leave.
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