Contributed by Jon Hoag
This month, the U.S. Department of Labor (USDOL) issued an Administrator’s Interpretation and Fact Sheet to clarify when an employee may take FMLA leave to care for an adult child. In order for a parent to take FMLA leave to care for a child age 18 or older, the parent must establish that: (1) the child has a disability as defined by the Americans with Disabilities Act; and (2) the child must be incapable of self-care. The USDOL issued guidance to clarify the age requirement, the impact of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) as related to the definition of a disability, and the guidance explains the FMLA leave available to parents whose son or daughter becomes disabled during military service.
The Age of Child at Onset of the Disability is Irrelevant
The guidance clarifies that the onset of a disability may occur at any age for purposes of the definition of a “son or daughter” under the FMLA. There is no requirement for the disability to have occurred or been diagnosed prior to the age of 18.
ADAAA’ s Broader Definition of Disability Applies
The USDOL confirmed that the ADAAA broadened the scope of coverage and expanded the ADA’s definition of “disability.” This expanded definition of “disability” is the one that applies to determine if an adult child has a “disability” for purposes of the FMLA. The USDOL’s conclusion states very simply that the ADAAA’s expanded definition of the term “disability” will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities and that are incapable of self-care. The guidance also notes that the child’s condition must also be a “serious health condition” under the FMLA, which will almost always be the case if the condition is a disability under the ADAAA.
Given that the ADAAA’s definition of disability is broad in scope and will be met in most cases, employers should review FMLA requests to care for an adult child with special attention given to the requirement that the parent be needed to care for the child because the child is incapable of self-care. For FMLA leave purposes, an adult child will be considered “incapable of self-care” if he or she requires active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs). Examples of ADLs and IADLs are:
- Caring appropriately for one’s grooming and hygiene
- Taking public transportation
- Paying bills
- Maintaining a residence
- Using telephones and directories
- Using a post office
FMLA Leave when Adult Child is Disabled During Military Service
The guidance also clarified that a parent of an adult child disabled during military service may be entitled to take more than the 26 workweeks within a 12-month period currently provided in the FMLA as military caregiver leave. If the disability lasts longer than the single 12-month period, the parent may qualify for additional FMLA leave in subsequent FMLA periods to care for an adult child with a disability that is incapable of self-care.
As the USDOL guidance makes clear, the changes to the ADA definition of “disability” will undoubtedly allow more parents to take protected FMLA leave. In addition to the increase in volume of FMLA leave requests, the other issue we expect to trouble employers is whether an impairment of short-term duration is a disability. We will continue to monitor and report on these types of ADAAA cases because the EEOC’s regulations do not make it clear when impairments of short-term duration qualify as a disability.