HR Focus: DOL Issues Guidance on Definition of Adult Child for FMLA Leave

Volume 12, Issue 3
March 8, 2013

The Family and Medical Leave Act ("FMLA") is one of the more challenging laws that human resource professionals are forced to deal with.  Among other things, it allows eligible employees to take up to 12 weeks of unpaid, job-protected leave to care for a spouse, child, or parent suffering from a serious health condition.  The FMLA defines "child" as a son or daughter who is: (A) under 18 years of age; or (B) 18 years or older and incapable of self-care because of a mental or physical disability.  In 2001, the U.S. Court of Appeals for the First Circuit settled the law in this area for employers under its jurisdiction.  In Navarro v. Pfizer, Inc., the First Circuit ruled that Pfizer had interfered with an employee's right to FMLA leave when it had denied her request to take FMLA leave to care for her adult daughter, who had been confined to bed for the last three months of her pregnancy.  In January, the U.S. Department of Labor issued guidance in the form of an Administrator's Interpretation ("AI") that further clarified this area of the law and made it clear for the rest of the country that FMLA leave is available for parents who want to care for their adult children if the individual is disabled and suffering from a serious health condition.  The AI addressed three issues: (1) the impact of the child's age when the disability first manifests; (2) the impact of the Americans with Disabilities Act Amendments Act ("ADAAA") on the definition of a "mental or physical disability;" and (3) the availability for FMLA leave to care for an adult child wounded in military service.  The AI was clear on the first issue: the age of the child at the onset of a disability is irrelevant in determining whether a parent can take FMLA to care for his or her adult child. In other areas of the country that were not bound by the First Circuit's decision in Navarro, there was some confusion as to whether an adult son or daughter's disability must have existed before the age of 18 or whether such a disability could have first occurred in adulthood.  The AI cleared up this confusion. Parents may be eligible for leave to care for an adult child who suffers from a disability regardless of when that disability began.  The second issue addressed the impact of the ADAAA on the definition of a disabled adult child under the FMLA . The amendments to the ADA that were effective in January 2009 significantly expanded the class of individuals who are "disabled" for the purposes of federal disability law.  The AI emphasized that the expanded definition of a "disability" provided for by the ADAAA applies when determining whether an adult child is disabled for purposes of the FMLA.  As with the ADAAA, impairments need not severely restrict a "major life activity" to qualify as a disability, and conditions that are episodic or in remission, such as epilepsy or cancer, would still be considered disabling even when symptoms are not currently manifesting.  There is also no minimum duration required for an impairment to be a disability.  The fact that an adult child is suffering from a disability, however, is not enough to trigger FMLA protection.  The adult child also must be "incapable of self-care."  The FMLA regulations define "incapable of self-care" to mean that "the individual requires active assistance or supervision to provide daily self-care in three or more of the 'activities of daily living' ("ADLs") or 'instrumental activities of daily living' ("IADLs")."  So, if an adult child with a disabling condition needs no assistance or supervision with ADLs or IADLs, his or her parents are not entitled to FMLA leave to care for the child.  If the child later needs assistance or supervision in 3 or more ADLs or IADLs because of his or her disabling condition, parental FMLA leave would be appropriate.  There is a four part test in the AI, and in order to qualify for FMLA leave, the adult child must meet all four criteria.  The adult child must:

  1. Have a disability as defined by ADAAA
  2. Be incapable of self-care because of that disability
  3. Have a serious health condition
  4. Need because of the serious health condition

Since most serious health conditions could qualify as disabilities, this test might not be that hard to pass.  However, just because the adult child is a diabetic, that does not mean that when he breaks his leg, his mother will be able to take FMLA leave to care for him.  The disability must be the reason that the adult child is incapable of self-care.  We expect that this will be an area of some confusion for a bit, while employers learn how to interpret this new test.  Finally, the AI addressed parental FMLA for adult children wounded in military service.  The FMLA provides for 26 weeks of military caregiver leave in a single 12-month period to care for a returning service member who sustains a serious injury or illness in military service.  The AI explains that where a parent takes 26 weeks of military caregiver leave to care for a wounded adult child, that parent may be entitled to an additional leave in a subsequent FMLA leave year if the child is still incapable of self-care due to a mental or physical disability.  In the end, this is likely not going to be a huge change from what employers are already doing.  Even so, FMLA compliance continues to be one of the biggest headaches for employers.  This HR Focus article was prepared by Skoler, Abbott & Presser, P.C., a member of the Worklaw® Network, which first appeared as an E-Alert. Reprinted with permission.

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