By Christine Wilkinson
Just in time for the Family and Medical Leave Act?s 20th birthday, the Department of Labor (DOL) issued an administrative interpretation (?AI?) clarifying the definition of ?son or daughter? under the FMLA to include adult children who have qualifying disabilities.
The FMLA entitles an eligible employee to take up to 12 weeks of unpaid, job-protected leave during 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 stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age or 18 years of age or older and incapable of self care because of a mental or physical disability.? Therefore, a child under 18 years of age is a “son or daughter” under the FMLA without regard to whether the child has a disability.
But what about an employee who requests leave to care for an adult child? Do employers have to provide leave? On January 14, 2013, the DOL answered that question in the affirmative by issuing AI No. 2013-1. The AI states that an employee is entitled to take FMLA leave to care for an adult son or daughter if the child meets all of the following criteria:
1) Has a disability as defined by the Americans with Disabilities Act (?ADA?);
2) Is incapable of self-care due to the disability;
3) Has a serious health condition; and
4) Is in need of care due to the serious health condition.
Two things are notable here. First, the child?s age at onset of the disability is irrelevant for the FMLA ?son or daughter? determination.? Thus, an employee with a son or daughter who has experienced adult-onset disability is covered by the FMLA.? Second, in defining mental or physical disability, the FMLA regulation adopts the ADA?s expansive definition of “disability”: a physical or mental impairment that substantially limits a major life activity, including episodic conditions that periodically flair up and substantially limit a major life activity.
What does this mean for employers? This regulation represents a significant expansion of individuals eligible for leave under the FMLA.? As a result, employers will probably see an increase in FMLA leave requests to care for disabled adult children. ?Employers often deal with the difficult task of navigating an employee?s interrelated disability and leave issues and calculations. This most recent clarification will represent additional challenges, particularly because the adult child?s medical status is now at issue. The determinations regarding disability and ability to self care are fact specific and should be determined based on the relevant individual?s condition at the time of an employee?s leave.
This most recent AI is the latest in a trend of expanding coverage under the FMLA for employees.? At a minimum, employers and HR professionals should review and amend their FMLA policies to reflect and incorporate the latest interpretation to remain in compliance.
SMART TIP:? In order to determine an employee?s entitlement to FMLA leave, employers may require that an employee provide notice of the need for leave and medical certification of a serious health condition, including that of an adult child.
Key Words: FMLA, disability, disabled, ?son or daughter?