The number of employees who may take FMLA-protected leave to care for adult children with disabilities is likely to increase under an interpretation of the federal Family and Medical Leave Act issued by the Wage and Hour Division (“WHD”) of the U.S. Department of Labor. The Interpretation, the first of the New Year for the Division, confirms that the age of a son or daughter at the onset of a disability is not relevant in determining an employee-parent’s entitlement to leave to care for a child with a disability, even if that child is an adult. Wage and Hour Division, Administrator’s Interpretation No. 2013-1 (Jan. 14, 2013). The Interpretation also adopts the broad definition of “disability” under the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) for FMLA purposes, and clarifies the availability of FMLA leave for parents to care for a child who becomes disabled during military service.
The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. A “son or daughter” is defined as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is … 18 years of age or older and incapable of self-care because of a mental or physical disability.” The Interpretation says a parent may take FMLA leave to care for an adult child if the child:
- has a disability as defined by the Americans with Disabilities Act (“ADA”) and ADAAA;
- is incapable of self-care due to that disability;
- has a serious health condition; and
- is in need of care due to the serious health condition.
These factors are discussed below.
Does the Adult Child Have a Disability?
The FMLA regulations adopt the ADA’s definition of “disability” — “a physical or mental impairment that substantially limits a major life activity,” as those terms are defined by the ADA implementing regulations issued by the U.S. Equal Employment Opportunity Commission. See 29 C.F.R. §§ 1630.2(h), (i), and (j). In the 2008 FMLA Final Rule, the DOL explicitly incorporated the ADAAA’s changes to the ADA’s definition of disability into the FMLA regulations.
The FMLA regulations state that an adult child is “incapable of self-care because of mental or physical disability” when he or she “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ or ‘instrumental activities of daily living’.” Activities of daily living (“ADLs”) include caring appropriately for one’s grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living (“IADLs”) include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, and using a post office. 29 C.F.R. § 825.122(c)(1).
Age at Onset of Disability not Relevant
A confusing issue for employers has been whether the disability must occur before the child is 18 and continue in adulthood. The FMLA regulations do not address whether the disability must occur before the child turns 18 for purposes of determining whether the individual is a “son or daughter.” Previously, the WHD issued differing opinions, some suggesting the disability must have existed before the age of 18, others indicating the date of onset was irrelevant.
After reviewing the FMLA’s legislative history, the WHD observed that Congress recognized a disabled child’s need for parental care may not end when the child reaches the age of 18 and that adults who are unable to care for themselves because of a disability have “the same compelling need for parental care” as children under the age of 18. Therefore, the WHD determined that the child’s age at the onset of a disability is irrelevant in determining whether an individual is considered a “son or daughter” under the FMLA.
Impact of ADAAA on FMLA’s Definition
The FMLA’s definition of an adult “son or daughter” depends on the ADA’s definition of “disability.” The WHD announced that the FMLA will follow the ADAAA’s expanded definition of disability and “major life activities,” and it will construe “disability” “in favor of broad coverage.” The Interpretation states, “[T]he ADAAA’s broad definition of ‘disability’ will therefore increase the number of adult children with disabilities for whom parents may take FMLA-protected leave if the adult son or daughter is incapable of self-care because of the disability and in need of care due to a serious health condition.”
For example, the WHD will follow the ADAAA’s regulations regarding the meaning of “substantially limited” and the use of mitigating measures. It also will follow the regulations on whether episodic impairments constitute a “disability” within the meaning of the ADA. The WHD also listed various impairments that “should easily be concluded” as substantially limiting, including, deafness, blindness, intellectual disability, missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, multiple sclerosis, Human Immunodeficiency Virus (“HIV”) infection, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
Is the Adult Child Incapable of Self-Care?
The Interpretation notes that determining whether an adult child is incapable of self-care is a fact-specific inquiry that must be made based on the individual’s condition at the time of the requested leave. The inquiry must focus on whether the individual currently needs active assistance or supervision in performing three or more ADLs or IADLs. The determination must be based on all relevant factors that might impact the ability of the individual to perform ADLs or IADLs without active assistance or supervision, including, for example, the current effect of any episodic impairment. Assistance with medication management, the Interpretation instructs, also should be considered in determining whether an adult child is incapable of self-care.
Is There a Serious Health Condition?
The Interpretation states that, for practical purposes, many impairments will satisfy both the ADAAA’s definition of “disability” and the definition of “serious health condition” under the FMLA. In any event, the standard medical certification developed by the DOL in most cases should determine whether the adult child has a serious health condition for FMLA purposes.
Does the Parent Need to Care for the Adult Child?
A parent may be “needed to care” for his or her adult child if, because of the serious health condition, the child is “unable to 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.” The Interpretation also notes that the term “needed to care” includes providing psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care.
Adult Children Wounded in Military Service
Under the FMLA’s military caregiver provision, a parent of a covered service member who sustained a serious injury or illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period if all other requirements are met. The interpretation clarifies that the service member’s parent can take FMLA leave to care for an adult child in subsequent years due to the child’s serious health condition.
“While the DOL has clarified what had been a confusing area of the FMLA, from a day-to-day management perspective, many more employees will be entitled to take FMLA leave to care for adult children. That is the take-away from the DOL’s guidance here,” said Joe Lynett, Partner in the Disability, Leave and Health Management Practice Group at Jackson Lewis LLP. Lynett adds, “The current DOL-approved medical certification to support a FMLA leave request to care for a covered family member does not contain a section specifically for the doctor to provide relevant information so that the employer can assess whether an adult child has a ‘disability’ within the meaning of the ADA. It remains to be seen whether the DOL will revise its medical certification forms to address this issue.”
Employers should consider reviewing their FMLA policies and procedures and training legal, human resources and managerial personnel about the wide range of conditions and circumstances that now may trigger FMLA leave to care for an adult child.