On February 25, 2013, our Labor & Employment group issued an alert summarizing two Family Medical Leave Act (FMLA) updates:

  • Recent Department of Labor (DOL) guidance regarding when FMLA leave can be taken by a parent to care for an adult child with a disability.
  • New FMLA regulations effective March 8, 2013 that primarily implement expansions to the military leave provisions made by the National Defense Authorization Act for Fiscal Year 2010 (NDAA).

Based on the substantial interest this alert generated, we are providing key action items and additional information designed to assist employers in implementing these changes.

Provide Training and Update Practices Regarding Leave to Care for Adult Children With Disabilities

While the DOL's recent guidance may not require employers to modify their written FMLA policies, they should reexamine their FMLA practices and educate all human resource professionals and supervisors who need to be able to recognize an employee's request for FMLA leave to care for an adult child with a disability. Many employers are familiar with granting FMLA leave to parents to care for minor children, but they are not as cognizant of the FMLA obligation to grant leave to care for an adult child with a disability. Also, employers should consider revising medical certification forms for this type of leave to gather the necessary eligibility information.

The regulations provide that a parent is entitled to take FMLA leave to care for a son or daughter who is either under 18 years of age or 18 years or older and incapable of self-care because of a mental or physical disability. The DOL's guidance emphasizes that the FMLA regulations define "mental or physical disability" as it is defined under the Americans with Disabilities Act, which was expanded by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Accordingly, employers should apply this expanded definition when considering a parent's FMLA request to care for an adult child with a disability.

A parent may qualify to take leave to care for an adult child if four conditions are met:

  1. The adult child must have a disability as defined under the ADA as amended. As most employers know, the definition of disability is now interpreted broadly in favor of expansive coverage. Further, whether an adult child has a disability is determined at the time the FMLA leave will begin. It does not matter whether the adult child developed the disability as an adult or a child, as long as the adult child is disabled at the time FMLA leave will begin.
  2. The adult child must be incapable of self-care because of the disability. It is not enough that the adult child has a disability; the disability must also render the adult child incapable of self-care. A son or daughter is incapable of self-care if he or she requires active assistance or supervision to provide self-care in three of more of the "activities of daily living" (ADLs) or "instrumental activities of daily living" (IADLs). ADLs include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. IADLs include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc. These lists are not exhaustive and may include other activities such as managing medications.
  3. The adult child must have a serious health condition. The adult child must have a serious health condition as defined by the FMLA. Many times a disability will also qualify as a serious health condition. However, the serious health condition that prompts the need for leave does not have to be related to the disability.
  4. The parent is needed to care for the adult child. The parent must be "needed to care" for the adult child due to the serious health condition. As most employers know, leave to care for a covered family member can include both physical and psychological care.

All four prongs must be met for a parent to qualify for FMLA leave to care for an adult child with a disability. For example, an adult child with a disability such as diabetes may not be incapable of self-care because of that disability. In this instance, the parent is not entitled to FMLA leave to care for the adult child even though the child has a disability, even if the child needs care for a serious health condition, such as where he or she is admitted to the hospital overnight for a skiing accident that does not render the him or her disabled. On the other hand, if diabetes or complications from diabetes renders the adult child disabled and incapable of self-care, the parent may be eligible to take FMLA leave to provide care for the child related to this chronic serious health condition, or related to another serious health condition for which care is needed.

Finally, recall that a "son or daughter" is defined as a "biological, adopted, or foster child, a step child, a legal ward, or a child of a person standing in loco parentis." The DOL's position is that a person stands in loco parentis to a child if the person has day-to-day responsibilities to care for or financially support the child.

Update FMLA Policies for Military Leave Provisions and Best Practices

Even employers who updated the military leave provisions in their FMLA policies following the October 28, 2009 effective date of the FY 2010 NDAA should update their policies again in light of the new regulations effective March 8, 2013. The new regulations establish additional definitions and provisions that should be incorporated into a company's FMLA policy. We encourage employers to consider having legal counsel review their FMLA policies. In addition to ensuring the policy is complaint with the latest FMLA regulations, counsel can suggest provisions to maximize an employer's ability to manage leave use and abuse.

Only Count FMLA Leave to Care for a Covered Veteran Beginning March 8, 2013

While many of the FY 2010 NDAA military leave provisions became effective on October 28, 2009, the expansion of the FMLA military caregiver leave to covered veterans was not effective until recently. Because the FY 2010 NDAA required the DOL to define "a serious injury or illness of a veteran," the DOL has stated that the military caregiver leave for covered veterans did not take effect until the new regulations became effective on March 8, 2013. Therefore, employers who granted military caregiver leave to care for a veteran prior to March 8, 2013 may not count that leave against the employee's FMLA military leave entitlement. Such leave could have been counted against the 12-week entitlement if it qualified as leave to care for a family member with a serious health condition (including leave by a parent to care for an adult child with a disability, as discussed above), if timely designated as such.