ADAAA Expanded Ability of Parents to Take FMLA Leave for Disabled Adult Son or Daughter


Human resource professionals occasionally receive requests from employees to take FMLA leave to care for an adult son or daughter with an alleged serious health condition. Some of the most frequent requests involve FMLA time to care for an adult daughter who has recently given birth. Prior to the adoption of the ADA Amendments Act (ADAAA), parents could only qualify for FMLA leave to care for adult sons or daughters in limited situations. However, according to the Department of Labor, ADAAA has significantly expanded these qualifying circumstances.
Last year, DOL issued an Administrator’s Interpretation addressing this issue. The Interpretation quoted older FMLA regulations that limit use of FMLA leave to care for adult offspring to situations where the son or daughter is incapable of self-care due to a physical or mental disability. Disability was defined through reference to the ADA. Incapacity was defined by DOL as being unable to perform at least three activities of daily living (i.e., preparing food, driving, bathing, cleaning, etc.).
Prior to ADAAA, this definition was limited by the high bar required to show an ADA disability. However, ADAAA significantly relaxed that definition. ADA disabilities now include impairments of major bodily functions even if there is no external effect on performance of major life activities. More importantly from the FMLA perspective, ADAAA relaxed the prior requirement that disabilities be permanent or long-term in nature. The disability definition now includes shorter term impairments such as broken bones, when some period of impairment during recovery is involved.
Due to these changes, employees with adult sons or daughters who suffer temporary impairments that cause incapacity can qualify for FMLA companionship leave. DOL does not consider whether the impairment began before or after the son or daughter turned 18, or whether the offspring has a spouse or person other than the parent capable of providing care.
Even with this relaxed definition, an employee who wants to be present for the birth of a grandchild will not qualify for FMLA leave in most circumstances. Normal childbirth would not be considered a disability even under ADAAA’s relaxed definition. However, in situations where the adult daughter suffers complications relating to childbirth, the mother or father could qualify for FMLA leave if the incapacity requirement is met.
Human resource managers should not reject employees’ FMLA requests out of hand simply because the request involves care for an adult son or daughter. The question of that employee’s eligibility for FMLA leave requires a detailed and fact-specific inquiry before any final decision regarding qualification for FMLA leave is reached.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Parker Poe Adams & Bernstein LLP | Attorney Advertising

Written by:


Parker Poe Adams & Bernstein LLP on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.