Yesterday, the U.S. Department of Labor issued an Administrator's Interpretation (AI) to clarify the factors an employer must consider when an employee requests leave to care for an adult child.
As we know, an otherwise eligible employee is entitled to FMLA leave to care for a child with a serious health condition. Under the regulations, "child" is defined as a son or daughter who is: 1) under the age of 18; or 2) age 18 or older and "incapable of self-care because of a mental or physical disability" at the time that FMLA leave is to commence. Thus, two factors must be present before an employee can take FMLA leave to care for his/her adult son or daughter: the child must be incapable of self-care and have a disability as defined by the Americans with Disabilities Act.
In short, the Administrator's Interpretation seeks to clarify three issues: 1) the age of the child at the onset of the disability; 2) the impact of the ADA Amendments Act of 2008 on the interpretation of 'disability' under the FMLA; and 3) the availability of FMLA leave for parents to care for an adult child who becomes disabled during military service.
My overall read of the AI? It does not declare anything new or otherwise signal a change in direction by the DOL in how it approaches the adult child provisions of the FMLA. In fact, one DOL official told me that the AI is meant to clarify and confirm the DOL's long-held position on caring for an adult child and provide guidance in this area to DOL field staff. Despite the relative straightforward nature of the AI, there are a few nuggets in the AI of which employers should take note:
Age of the Disabled Child
In its AI, the DOL noted some confusion over whether it is relevant if the adult child's disability occurred before or after the son or daughter turns the age of 18. Not surprisingly, the DOL confirmed that the age of the child at the onset of the disability is irrelevant to the determination. Put simply, the FMLA covers an adult child who suffers from a disability that originated prior to age 18 as well as one that did not commence until adulthood.
Impact of the ADAAA
In the FMLA regulations, the DOL long has adopted the ADA's definition of disability for purposes of defining a son or daughter over age 18 under the FMLA. As expected, the DOL endorsed the changes to the definition of "disability" under the ADAAA and warned that these changes clearly will impact an employee's ability to take FMLA leave to care for an adult child. Notably, the DOL reminded readers that the EEOC's position that the definition of disability should "be construed in favor of broad coverage" and "should not demand extensive analysis" is persuasive in the FMLA context as well.
What's the impact of the ADAAA on FMLA leave to care for an adult child? The DOL unambiguously tells us in the AI:
The ADAAA's expanded definition of the term 'disability' will enable more parents to take FMLA-protected leave to care for their adult sons or daughters with disabilities . . . "
Requiring the Employer to be Clairvoyant?
Employers should take note of one particular example offered in the AI. As I have noted in various FMLA presentations I've given over the past year, the employer's determination to designate FMLA leave usually occurs within the first couple of days or weeks of the need for leave. In many instances, however, employers do not have enough information yet to make the FMLA determination because it does not have any confirmation that the adult child actually is disabled. Take, for instance, a horrific automobile accident that leaves an adult child in serious condition. Despite the child's current condition, the doctor opines that the child is expected to make a complete recovery. Does this condition constitute one that rises to the level of a disability? All too often, employers are not in a position to know. In this context, the DOL offers some guidance in its AI:
An employee’s 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major life activities (i.e., walking standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult “daughter” under the FMLA as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.
This example is relatively straightforward because the DOL tells us (in the middle of the paragraph above) that the daughter will be substantially limited in walking for six months. Under the watered down version of the ADAAA, this duration likely supports the notion that the child is disabled. However, employers don't often have a prognosis of the kind delivered above. In fact, employers very rarely receive a prognostication from a health care provider like the kind offered above. My continued fear is that employers will be required to read the tea leaves in determining whether the adult child is disabled.
Impact on Military Leave
Finally, the DOL confirmed in its AI that parents of adult children who have been wounded or sustained an injury or illness in military service may be allowed to take more leave than the 26 workweeks provided for under the FMLA. Noting that the servicemember's injury or illness may last beyond the 12-month period covered by the military caregiver leave entitlement, the DOL affirmed that the family member is entitled to take additional FMLA leave in subsequent FMLA leave years due to the child's serious health condition, so long as the adult child is unable to care for him or herself due to a disability.
Insights for Employers
Anything earth shattering in this AI? No. But it's good to see the DOL spring to life lately when it comes to the FMLA: in the past several months, it now has issued this AI on a thorny FMLA topic and published an Employee Guide to the FMLA, which we've found helpful to employees and employers alike. Perhaps we'll get some final regulations soon on those proposed last year? I'm not holding my breath!
For those of you playing along at home, here are links to the Administrative Guidance issued by the DOL yesterday:
Q and As on the Administrative Guidance