In its first Administrator's Interpretation of 2013, the Department of Labor ("DOL") issued guidance on the definition of a "son or daughter" age 18 or older who is incapable of self-care due to a disability. The Wage and Hour Division of the DOL, in Administrator's Interpretation 2013-1 ("Interpretation") clarifies that the age of a son or daughter at the onset of a disability is irrelevant to the determination of whether leave under the Family and Medical Leave Act ("FMLA") would be available to eligible employees who require the leave to care for an adult son or daughter who is incapable of self-care because of a disability.

Under the FMLA, an eligible employee is entitled to up to 12 weeks of leave in a 12 month period to care for a "son or daughter with a serious health condition." The FMLA defines a "son or daughter" as a "biological, adopted, or foster child, a step-child, a legal ward, or a child of a person standing in loco parentis, who is "(A) under 18 years of age or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability." 29 U.S.C. §2611(12); 29 C.F.R. §825.122(c). However, the FMLA regulations do not specify whether the disability that renders the son or daughter incapable of self-care must have occurred before or after age 18.

The Interpretation reviews the legislative history of the FMLA and highlights that Congress "recognized that a disabled child's need for care from a parent may not end when the child reaches the age of 18 . . . [and] adults who are unable to care for themselves because of a disability have the 'same compelling need for parental care' as children under the age of 18." The Interpretation also states that the Wage and Hour Division ("WHD") had addressed the issue in the preamble to the 2008 FMLA Final Rule in which it gave an example of a 25-year old son who suffered a stroke that left him with substantial and permanent mobility impairments. In that preamble, WHD "indicated that his parent would be able to take FMLA leave to provide care after the stroke because he would be incapable of self-care due to a physical disability that was also a serious health condition necessitating care."

The Interpretation concludes that "based on the purpose of the FMLA, the legislative history of the definition of 'son or daughter' and WHD's enforcement experience, as well as the example in the preamble to the 2008 FMLA Final Rule, it is the Administrator's interpretation that the age of onset of a disability is irrelevant in determining whether an individual is a "son or daughter" under the FMLA."

In addition, the Interpretation confirms that because the FMLA's definition of son or daughter looks to the definition of "disability" under the Americans with Disabilities Act, that definition, as expanded by the Americans Disabilities Act Amendments Act of 2008 ("ADAAA") will be applicable to determinations of disability under the FMLA. The Interpretation recognizes that the broad definition of disability under the ADAAA will "increase the number of adult children with disabilities for whom parents may take FMLA protective leave."

Please contact Susan Parrott with any questions.