This year marks the twentieth anniversary of the Family and Medical Leave Act (FMLA), which entitles eligible parents to take up to 12 workweeks of unpaid job-protected leave within a 12-month period to care for a “son or daughter” with a serious health condition. Until recently, however, whether the FMLA’s definition of “son or daughter” included adult children has been unresolved.
The DOL, which enforces the FMLA, recently issued guidance that children at or above age 18 may be a “son or daughter” under the FMLA, if the following four requirements are satisfied.
- The adult child must have an ADA-defined disability. The DOL adopted the broad definition of “disability” established under the ADA Amendments Act of 2009 (“ADAAA”) to extend “broad coverage” for qualifying health conditions. This FMLA-to-ADA linkage means that any changes to the ADA definition of “disability,” as interpreted by the EEOC and/or the courts, will also impact the qualification standards for adult children under the FMLA.
- The adult child must be incapable of self-care due to his or her disability. An adult child is “incapable of self-care” if the child “requires active assistance or supervision” in completing three or more activities of daily living (“ADLs”) or instrumental activities of daily living (“IADLs”). Examples of ADLs and IADLs include, without limit, bathing, dressing, caring for one’s hygiene, eating, cooking, cleaning, shopping, taking public transportation, paying bills, and using a post office.
- The adult child must have a serious health condition. Under the FMLA, a person has a “serious health condition” if the condition requires inpatient care or continuing treatment by a health care provider. The DOL guidance states that, “[f]or practical purposes, many impairments will satisfy both the ADAAA’s expanded definition of ‘disability’ and the definition of ‘serious health condition,’ even though the statutory tests are different.”
- The adult child must be in need of care due to the serious health condition. According to the DOL guidance, the adult child is in need of care if the child cannot care for “his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor.” “Needed to care” also may include psychological comfort and reassurance provided by the parent to the adult child during his or her inpatient care or continuing treatment.
In addition, the DOL emphasized that the child’s age at the start of the covered health condition makes no difference in this FMLA inquiry. All that matters is satisfaction of the above four factors.
The DOL guidance also explains the impact of its new interpretation rules on the FMLA’s military caregiver provision. Under that provision, a parent of a covered servicemember who sustained a qualified injury or illness has a right to up to 26 workweeks of FMLA leave in a 12-month period. In some cases, however, the servicemember’s condition persists beyond that 12-month period. According to the DOL, the parent can take up to 12 workweeks of FMLA leave in each subsequent year to care for the servicemember, so long as the DOL’s four requirements are met.
Expect an increase in FMLA requests by employees seeking FMLA leaves to care for their adult children. For that reason, employers should review and, if necessary, update their policies, handbooks, and training to ensure compliance with the DOL’s FMLA guidance.