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Log In / Register | Jul 23, 2018

DOL Issues Employer Guidelines on Parents’ Rights of Leave to Care for Adult Children

Since its enactment in 1993, an unresolved issue under the Family and Medical Leave Act (“FMLA” or “the Act”) was exactly how the definition of “son or daughter” under Section 101(12) of the Act applied to adult children, 18 years of age or older and incapable of self-care because of a mental or physical disability.  In interpretive guidelines just issued by the U.S. Department of Labor (“USDOL”), which enforces the FMLA, the federal agency clarified that the age of a son or daughter at the onset of a disability is not relevant in determining a parent’s entitlement to FMLA leave.  Employers need to be aware that the new guidelines will expand the number of employees who will now be eligible to take FMLA leave to care for adult children.

An adult son or daughter must meet the following four requirements for a parent/employee to be entitled to leave under the Act:

  1. The adult child must have a disability as defined by the Americans with Disabilities Act (“ADA”).  The USDOL has adopted the ADA’s definition of disability to define “mental or physical disability” for purposes of defining a son or daughter 18 years of age or older under the FMLA. The guidelines take into account the recent Americans with Disabilities Amendments Act (“ADAAA”) and the requirement that the definition of disability be construed “broadly”. The FMLA regulations define a physical or mental disability as “a physical or mental impairment that substantially limits one or more of the major life activities of an individual.”
  2. Is incapable of self-care due to that disability.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”). ADLs include 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.” Id. The list of ADLs and IADLs in the regulations is not exhaustive, and additional activities such as assistance with medication management, should also be considered in determining whether an adult son or daughter is incapable of self-care because of a disability.
  3. Has a serious health condition. Under the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
  4. Is in need of care due to the serious health condition.  Finally, in order for a parent to take FMLA leave to care for an adult son or daughter, the parent must be “needed to care” for that son or daughter due to the serious health condition. The parent may be needed to care for his or her adult son or daughter if, for example, because of the serious health condition the adult 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 term “needed to care” also 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.

It is the USDOL’s interpretation that the ADAAA’s broad definition of “disability” will 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.  The guidelines also offer some examples of when and when not a parent/employee would be eligible to take FMLA leave to care for a son or daughter over the age of 18.

    Example 1: An employee’s 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major life activities (i.e., walking standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult “daughter” under the FMLA as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.

Example 2: An employee’s 25-year old son has diabetes but lives independently and does not need assistance with any ADLs or IADLs. Although the young man’s diabetes qualifies as a disability under the ADA because it substantially limits a major life activity (i.e., endocrine function), he will not be considered an adult “son” for purposes of the FMLA because he is capable of providing daily self-care without assistance or supervision. Therefore, if the son is admitted to a hospital overnight for observation due to a skiing accident that does not render him disabled, his parent will not be entitled to take FMLA leave to care for him because he is over the age of 18 and not incapable of self-care due to a mental or physical disability. If the son later becomes unable to walk and is also unable to care for his own hygiene, dress himself, and bathe due to complications of his diabetes, he will be considered an adult “son” as he is incapable of self-care due to a disability. The son’s diabetes will be both a disability under the ADA and a chronic serious health condition under the FMLA because his condition requires continuing treatment by a doctor (e.g., regular kidney dialysis appointments). If his parent is needed to care for him, his parent may therefore take FMLA-protected leave to do so.

The USDOL’s interpretive guidelines also address the FMLA’s military caregiver provisions for employees needing leave to care for adult children who have been wounded or sustained an injury or illness in military service.

The expanded definition of a disability under the ADAAA, as well as the clarification that when an adult son or daughter’s disability commences is not determinative of whether he or she qualifies as a “son or daughter” under the FMLA, may allow parents of adult children who have been wounded or sustained an injury or illness in military service to take FMLA leave beyond that provided under the special military caregiver leave provision of the statute. Under the military caregiver provision, a parent of a covered servicemember 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 servicemember’s injury, however, may have an impact that lasts beyond the single 12-month period covered by the military caregiver leave entitlement. Thus, this interpretation clarifies that the servicemember’s parent can take FMLA leave to care for a son or daughter in subsequent years due to the adult child’s serious health condition, as long as all other FMLA requirements are met.  The USDOL offers the following example:

Example: A father has exhausted his 26 workweeks of military caregiver leave to care for his 20-year old son, a returning servicemember who sustained extensive burn injuries to his arms and torso. In the next FMLA leave year, the father seeks leave from his employer to care for his son as he undergoes and recovers from additional surgeries and skin graft procedures. The father will be entitled to take up to 12 workweeks of FMLA-protected leave to care for his son because his son’s burn injuries that substantially limit his ability to perform manual tasks constitute a disability under the ADA, the son is incapable of self-care due to a disability (i.e., he needs active assistance or supervision in bathing, dressing, and eating), the son’s burn injuries are a serious health condition because they require continuing treatment by a health care provider, and the father is “needed to care” for the son.

With the release of these new interpretive guidelines, employers should be prepared to address an increase in such employee requests for leave to care for adult children.  Likewise, employers should ensure that current policies and handbooks are in accord with the USDOL’s interpretation and if not, revise them accordingly.

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