The U.S. Department of Labor’s (DOL) Wage and Hour Division issued an Administrator’s Interpretation on January 14, 2013, clarifying the definition of “son or daughter” under the Family and Medical Leave Act (FMLA) as it applies to individuals 18 years of age or older and incapable of self-care because of a mental or physical disability.

Age of Son or Daughter

In the interpretation, the DOL clarifies that the age of the son or daughter at the onset of disability is not relevant in determining the parent’s entitlement to FMLA leave. This is consistent with the way courts had interpreted this provision. Therefore, theoretically, an individual can cease to be a child under the FMLA, then have some traumatic injury or illness causing them to suffer from a disability, thereby becoming a child again.

Disappointingly, the guidance did not address a more confusing component of the law. As stated above, not only does the employee have to establish that the child has a disability, but the employee also must prove it is one that renders the child “incapable of self care.” This always raised the question—does the child need to be “incapable of self care” at the time the leave is sought, or does the child need to merely have a disability that occasionally renders them incapable of self care, even if not at the time the leave is sought. Many benefits administrators assumed the “serious health condition” requiring the leave must somehow relate to the “disability” that triggers the familial relationship. They do not. Courts examining these fact patterns parse the two and ask, first, whether the adult child has a qualifying disability that occasionally renders him or her incapable of self care. If the child does, then he or she meets the definition, even if the disability does not render the child incapable of self care at the time leave is sought. The courts then ask whether the child has a serious health condition causing the need for leave.

Definition of Disability

Additionally, in light of the changes to the definition of “disability” under the Americans with Disability Act Amendments Act of 2008 (ADAAA), the DOL provides guidance on the impact of those changes on the FMLA. The DOL definitely needed to weigh in on this issue. When the Americans with Disabilities Act of 1990 (ADA) was amended, FMLA practitioners immediately began asking how the ADA amendments may alter the definition of disability under the FMLA.

The ADAAA expanded the definition of “disability” by broadening the definition of “major life activities” to include the “operation of a major bodily function,” such as functions of the immune system or respiratory functions. The ADAAA also expanded the definition of disability to include conditions that periodically flair up and cause substantial limitations but ordinarily do not. Under the ADAAA, an “impairment that is ‘episodic or in remission’ is a disability if, when active, the impairment would substantially limit a major life activity . . . Thus, cancer in remission . . . would still be considered a disability even when the symptoms of the condition are not currently manifesting.” The DOL acknowledges that the expanded definition of disability under the ADAAA, if applied to the FMLA, would enable more parents to take FMLA leave to care for their adult children.

The DOL clearly views the expansion of the ADA as an opportunity to expand coverage under the FMLA. Whether a court would agree with them, however, is still debatable. Under strict rules of statutory construction, the definition that Congress had in mind when it passed the FMLA was the then existing definition of the ADA. Whether a subsequent amendment to the ADA would therefore evidence Congressional intent to amend its use of the word in the FMLA context is dubious.

Impact on Military Caregiver Leave

The DOL also clarifies that with the expanded definition of disability under the ADAAA and with the age of the son or daughter at the commencement of disability being irrelevant, a parent who requests FMLA leave to care for an adult child that becomes disabled during military service may be allowed to take more than the 26 workweeks of FMLA leave beyond that provided under the military caregiver leave provision. Thus, the parent of a service member could take additional FMLA leave in subsequent years to care for an adult child due to the child’s serious health condition, as long as all of the other FMLA requirements are satisfied—i.e., the service member is shown to have a “disability” that occasionally causes them to be unable to care for themselves.

Michael (Mike) M. Shetterly is the managing shareholder in the Greenville office of Ogletree Deakins. He regularly trains human resources professionals, managers, and/or supervisors on FMLA and ADA compliance. He has also developed FMLA compliance software (FMLA Edge), which launches this spring. Mr. Shetterly will be visiting the following cities to lecture on FMLA compliance:

EVERYTHING YOU NEEDED TO KNOW ABOUT THE FMLA, BUT DIDN’T…

Locations and dates:

• Kansas City on  January 28, 2013
• Minneapolis on January 30, 2013
• Chicago on February 1, 2013
• Pittsburgh on February 13, 2013
• Atlanta on February 25, 2013
• Birmingham on February 27, 2013
• Nashville on March 1, 2013
• Orange County on March 7, 2013
• Phoenix on March 12, 2013
• Denver on March 14, 2013