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 ("FMLA").

For an employee to be eligible for FMLA leave to care for his or her adult son or daughter, the son or daughter must:

  1. Have a disability as defined by the Americans with Disabilities Act;
  2. Be incapable of self-care due to his or her disability;
  3. Have a serious health condition; and
  4. Be in need of care due to the serious health condition.

The WHD's Guidance clarifies three main points.

  1. The age of onset of a son or daughter's disability is irrelevant when determining the parent's entitlement to FMLA leave.
  2. 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 leave.
  3. FMLA leave available to employees whose child becomes disabled during military service may be expanded if the injury has a lasting impact.

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 counsel.

Originally published on the Employer's Law Blog


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