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FMLA Leave to Care for Adult Children

Department of Labor Issues New Guidance on Area of Confusion

Karina L. Schrengohst

Karina L. Schrengohst

The Family Medical Leave Act (FMLA) presents many challenges for employers because of its complexities. And one area of confusion employers have faced arises in the context of requests for leave to care for adult children.

Generally, 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 who is under the age of 18. Once an employee’s son or daughter turns 18, a parent is entitled to take FMLA leave only if the adult son or daughter (1) has a mental or physical disability as defined by the Americans with Disabilities Act (ADA); (2) is incapable of self-care due to that disability; (3) has a serious health condition; and (4) is in need of care due to the serious health condition.

One issue employers have struggled with is whether the disability had to occur before the child turned 18 years of age. Recent guidance issued by the Department of Labor’s (DOL) Wage and Hour Division answers this question.

On Jan. 14, the Wage and Hour Division issued a new Administrator’s Interpretation (No. 2013-1) that clarifies the definition of “son or daughter” under the FMLA, and addresses whether an employee is entitled to FMLA leave to care for an adult child who does not become incapable of self-care because of a disability until after the child turns 18. DOL guidance clarifies that whether an adult child’s disability arises before or after the child turns 18 is not relevant in determining a parent’s entitlement to FMLA leave. Therefore, an otherwise eligible employee is entitled to take leave under the FMLA to care for an adult child with a serious health condition who is incapable of self-care because of a disability regardless of when the disability commenced.

This means that employers should focus on the adult child’s condition at the time of the requested leave when determining eligibility for FMLA leave.

The administrator’s interpretation also demonstrates how the significantly expanded definition of ‘disability’ under the Americans with Disability Act Amendments Act of 2008 (ADAAA) has impacted the FMLA.

The DOL has historically adopted the ADA’s definition of disability for purposes of defining a son or daughter 18 years of age or older. And the DOL notes, pursuant to the clear language of the ADAAA and the EEOC’s position, that the definition of disability “should be construed in favor of broad coverage” and “should not demand extensive analysis.”

Therefore, when the ADAAA broadened the definition of disability, it similarly broadened the scope of this definition under the FMLA. Thus, the number of adult children falling under the FMLA’s definition of son or daughter has increased, which enables more parents to take FMLA-protected leave to care for an adult child who is incapable of self-care because of a disability.

As an illustration, the administrator’s interpretation provides the following scenario: An employee requests leave under the FMLA after his or her 37-year old daughter is injured in a car accident. The daughter suffers a shattered pelvis in the 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 healthcare provider. Although she is expected to recover, she will be substantially limited in walking for six months. If the daughter needs assistance with three or more daily living activities, such as bathing, dressing, and maintaining a residence, she will qualify as an adult child under the FMLA because she is incapable of self-care due to 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.

In addition, the DOL guidance addresses an employee’s request for FMLA leave to care for an adult child who has been injured during military service.  Under the military-caregiver provision of the FMLA, an otherwise eligible employee may take up to 26 weeks of leave in a single 12-month period to care for an adult son or daughter injured in the line of duty. The administrator’s interpretation notes that the service member’s injury may last longer than a single 12-month period. Thus, the DOL clarifies that the service member’s parent, if otherwise eligible, would be entitled to take 12 weeks of FMLA leave in subsequent years for the purpose of providing care to an adult child.

As an illustration, the administrator’s interpretation provides the following scenario. A father has exhausted his 26 weeks of military-caregiver leave to care for his 20-year old son, a returning service member who sustained extensive burn injuries to his arms and torso. In the next FMLA leave year, the father seeks leave from his employer to care for his son as he undergoes and recovers from additional surgeries and skin-graft procedures.

The father will be entitled to take up to 12 weeks of FMLA-protected leave to care for his son because his son’s burn injuries, which substantially limit his ability to perform manual tasks, constitute a disability under the ADA — the son is incapable of self-care due to a disability (i.e., he needs active assistance or supervision in bathing, dressing, and eating), the son’s burn injuries are a serious health condition because they require continuing treatment by a healthcare provider, and the father is needed to care for the son.

Employers should review the way they determine FMLA eligibility to account for this recent guidance. In addition, supervisors and managers should be trained to ensure they are prepared to handle requests for leave in light of this new interpretation. Further, when faced with requests for leave to care for an adult child, employers will have to make a case-by-case determination of whether the adult child qualifies as a son or daughter under the FMLA and the employee qualifies for leave under the FMLA.

 

Karina L. Schrengohst, Esq., an attorney at Royal LLP, a boutique, management-side-only labor and employment law firm, specializes exclusively in management-side labor and employment-law litigation and preventative practices to avoid litigation. Royal LLP is SOMWBA-certified as a woman-owned business with the Mass. Supplier Diversity Office (formerly known as the State Office of Minority and Women’s Business Assistance); (413) 586-2288; [email protected]

 

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