Regarding situation (1) above, the DOL states that although the 26 weeks of “injured service member care leave” can only be used once per service member for the same illness or injury, employees also would be eligible to use “regular FMLA leave” in later years (after the 12-month period in which the 26 weeks of “injured service member care leave” is used) if the injured service member is their “son or daughter,” the illness or injury constitutes (or they otherwise have) a disability under the ADAAA, and the service member is incapable of self-care due to the disability.
Regarding situation (2) above, several questions had been submitted to the DOL from employers and employees alike, posing various scenarios involving disabled adult children (including “in loco children”) and asking “would this be covered?” Rather than try to address each specific situation posed to it, the DOL instead provided the following general information in the new Administrator’s Interpretation:
It does not matter whether the “son or daughter” is disabled “as a child” (i.e., when he/she is under 18) or whether the disability happens later in life when the child is an adult.
The fact that an adult “son or daughter” has a “disability” as defined by the ADAAA does not automatically mean that an employee can use FMLA leave to care for them.
There are actually four (4) parts to the FMLA leave eligibility analysis when it comes to caring for adult children:
(1) is the son or daughter “disabled” under the ADAAA;
(2) is he/she “incapable of self-care” due to the disability;
(3) does the disability also constitute a “serious health condition” under the FMLA; and
(4) is the employee “needed to care” for the disabled son or daughter.
The answer to criteria (4) will be interpreted for adult “sons and daughters” the same as for any other person – i.e., does the “son or daughter’s health care provider say that care (including, but not limited to, psychological comfort) by the employee is medically necessary?”
The answer to criteria (3) is almost always going to be “yes,” as if the “son or daughter” has a “disability” under the ADAAA this “disability” is almost always going to meet the lower standard of also being a “serious health condition” under the FMLA. “Serious health conditions” include all chronic or ongoing conditions, those involving inpatient care, or more than three (3) consecutive calendar days of incapacity plus ongoing medical treatment, etc.
The answer to criteria (1) will be resolved under the ADAAA.
So, the only “tricky” criteria to apply in most situations involving the use of FMLA leave to care for adult “sons and daughters” will be (2) – is the son or daughter “incapable of self-care due to the disability?”
The FMLA defines “incapable of self-care” to mean that the son or daughter “requires active assistance or supervision to provide daily self-care in three (3) or more ‘activities of daily living’ or ‘instrumental activities of daily living.’” 29 C.F.R. § 825.122(c)(1). “Activities of daily living” include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating. Id. “Instrumental activities of daily living” include cooking, cleaning, shopping, using public transportation, paying bills, maintaining a residence, using telephones and telephone directories, using a post office, etc. Id.
In the new Administrator’s Interpretation, the DOL goes on to say that “these lists are not exhaustive.” “Factors such as being able to manage medication also should be considered in determining whether an adult son or daughter is ‘incapable of self-care.’"
So, what this new Interpretation helps clarify is if, for example, an employee is requesting leave because his/her 30-year-old daughter who is a breast cancer survivor is now having a baby, that employee would not be eligible to use FMLA leave to care for the daughter relating to a normal pregnancy. If this same daughter will be incapable of self-care for a few weeks due to reconstructive surgery relating to the breast cancer, however, the employee would qualify for FMLA leave to care for her during this period. Similarly, for a 20-year-old autistic son who lives independently in a group home or other setting, an employee could not use FMLA leave just to go visit or “check on him” because he is autistic. But if this same son gets the flu and his doctor says he is incapable of self-care (monitoring his medication, cooking for himself, etc.) due to his autism – even though the flu is what has stimulated the period of incapability – the employee could use FMLA leave to go help his/her son in this situation.
You can no doubt think of hundreds of other similar scenarios – which is apparently why the DOL issued this new Administrator’s Interpretation. As FMLA leave requests arise involving adult children, or any other challenging scenarios, please feel free to contact Stacie Caraway
or any other member of our Labor & Employment Law Practice Group