DOL Clarifies - But Does Not Change - FMLA Definition of Son or Daughter

Author: Melissa Burdorf, Legal Editor

On January 14, 2013, the US Department of Labor (DOL) issued an Administrator's Interpretation that clarifies the definition of son or daughter under the Family and Medical Leave Act (FMLA). This includes identifying the factors an employer should look at when an employee seeks leave to care for a child over the age of 18. The DOL has not changed its definition, but has merely provided additional guidance.

Eligible employees can take FMLA leave to care for a spouse, parent, son or daughter who is suffering from a serious health condition. The FMLA regulations define son or daughter as a biological, adopted or foster child, stepchild, a legal ward or a child of a person standing in loco parentis who is:

Under the age of 18; or
Over the age of 18 and is incapable of self-carebecause of a physical or mental disability (as defined under the Americans with Disabilities Act (ADA)) at the time FMLA leave is requested.

Therefore, an otherwise eligible employee will be qualified to take FMLA leave to care for an adult child with a disability if the child meets the following four requirements:

Has a qualifying disability under the ADA;
Is incapable of self-care due to the disability;
Has a serious health condition; and
Needs care due to the serious health condition.

A person is incapable of self-care if he or she needs active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs). Examples of ADLs include taking care of hygiene, bathing, dressing and eating. Examples of IADLs include cooking, cleaning, paying bills and shopping.

To alleviate any confusion regarding the above four requirements, the Administrator's Interpretation draws attention to three areas:

The child's age at the onset of the disability;
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA); and
Whether the employee is seeking leave to care for an adult child wounded during military service.

Child's Age at Onset of Disability

Clarifying confusion over whether an adult child must have sustained a disability before or after turning age 18, the DOL confirmed that the child's age at the onset of the disability is not an important factor in determining an employee's entitlement to leave. Rather, the DOL explains that the FMLA covers an adult child who suffers from a disability that begins before or after age 18 - as long as the child is still disabled at the time of the FMLA leave request. This logic is in line with the legislative history of the FMLA, which recognizes that a child with a disability may need care past the age of 18 in the same fashion as he or she did when he or she was under 18.

Thus, for example, if an employee's 28-year-old son suddenly experiences a stroke that renders him disabled and incapable of self-care, then the employee (if otherwise eligible) would be qualified to take leave to care for his or her son.

The ADAAA

After the ADA was amended by the ADAAA, the Equal Employment Opportunity Commission (EEOC) stated that the definition of disability should be construed in favor of broad coverage. As a result, the courts have since shifted their focus away from determining whether an employee has a qualifying disability to whether the employer has fulfilled its ADA obligations.

Because the FMLA adopts the ADA's definition of disability, when an employer receives an employee's FMLA request to take care of his or her adult child with a disability, the employer must carefully evaluate the employee's request, remembering that an adult child is now far more likely to qualify as disabled under the ADA.

Employers can request that an employee provide medical information regarding the child's disability. However, such requests should be limited to information necessary to determine whether the child has a qualifying disability under the ADA.

The DOL offers a couple of examples to help an employer. Its main point is that, because of the ADAAA's broad definition of disability, employers should see an increase in the number of adult children with disabilities for whom parents may take FMLA protected leave.

Military Leave

The DOL confirmed that parents of adult children who have sustained an injury or illness in military service may be eligible to take more than the 26 workweeks of leave in a single 12-month period, as allotted under the military caregiver provision of the FMLA.

Because a servicemember's injury or illness may persist longer than the 12-month period, the DOL confirmed that a family member of such a servicemember 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 himself or herself due to a disability and other FMLA eligibility requirements are met. The DOL provided a practical example of this as well.

Additional Tips for Employers

Whether an employee is entitled to FMLA must always be analyzed on a case-by-case basis.

An employer's obligation to provide an employee leave to care for an adult child who is disabled only refers to providing FMLA leave for the adult child with a disability's serious health condition. The ADA does not require employers to provide extended leaves under the ADA, beyond FMLA, for employees to care for adult children with disabilities. The ADA's reasonable accommodation provision only applies to employees who require accommodation for their own disabilities (subject to any state law exceptions).

Employers should also note that the ADA contains a provision that prohibits employers from discriminating against an employee based on the employee's relationship or association with another person with a known disability. Thus, when an employee requests FMLA leave for a family member with a serious health condition they are putting their employers on notice of a family member's health condition(s), which may also be an ADA disability - therefore, the ADA's association protection will extend to these employees. More guidance on this topic is available by clicking here.

Employers should be aware that the DOL's interpretive guidance on a statute may provide meaningful and comprehensive guidance and compliance assistance to the broadest amount of employers and employees, but it does not intend to take the place of the law.