Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children

by Orrick - Global Employment Law Group
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The ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims; it also broadened the scope of FMLA leave that employees may take to care for their adult children. On January 14, 2013, the Department of Labor clarified that the age of the onset of a disability is irrelevant to determining whether an individual is considered a “son or daughter” under the FMLA. See Dept. of Labor Wage and Hour Div., Administrator’s Interpretation No. 2013-1.

The DOL also clarified that:

  1. the definition of a “son or daughter” is defined by the definition of a disability under the ADAAA, which “shall be construed in favor of broad coverage;”
  2. the determination of whether an adult son or daughter is incapable of self-care under the FMLA focuses on whether the individual currently needs active assistance or supervision in performing three or more activities of daily living (or ADLs) including “grooming, hygiene, bathing, dressing and eating;” or instrumental activities of daily living (or IADLs) including “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, and using a post-office, etc.;”
  3. a serious health condition is an illness, injury impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider; and
  4. for a parent to take FMLA leave to care for an adult son or daughter, the parent must be “needed to care” for that son or daughter due to the serious health condition.

The DOL has provided examples that demonstrate how these rules should be applied. One such example: An employee’s 25-year old son has diabetes and attends regular kidney dialysis appointments, but lives independently and does not need assistance with any ADLs or IADLs. Although the young man’s diabetes qualifies as a disability under the ADA because it substantially limits a major life activity (i.e., endocrine function), he will not be considered an adult “son” for purposes of the FMLA because he is capable of providing daily self-care without assistance or supervision. If the son later suffered a skiing accident that did not render him disabled within the meaning of the ADA (because it did not result in a physical or mental impairment that substantially limits one or more of his major life activities), and was admitted to a hospital overnight for observation, his parent would not be entitled to take FMLA leave to care for him because he is over the age of 18 and not incapable of self-care due to a mental or physical disability. If the son later became unable to care for his own hygiene, dress himself, and bathe due to complications of his diabetes, he would be considered an adult “son” as he is incapable of self-care due to a disability. The son’s diabetes would be both a disability under the ADA and a serious health condition under the FMLA because his condition requires continuing treatment by a doctor (e.g., regular kidney dialysis appointments). If his parent is needed to care for him, his parent may therefore take FMLA-protected leave to do so.

 

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Orrick - Global Employment Law Group
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