The Family Medical Leave Act (“FMLA”) provides eligible employees up to 12 weeks of unpaid, job-protected leave to care for a “son or daughter” with a serious health condition. According to the regulations implementing the FMLA, “son or daughter” includes a minor child and a child “who is 18 years or older and incapable of self-care because of a mental or physical disability at the time FMLA leave is to commence.”
On January 14, 2013, the Wage and Hour Division of the Department of Labor (DOL) issued Administrator’s Interpretation No. 2013-1 to clarify when an eligible employee may take leave to care for an adult child who is 18 years of age or older. Four factors must be met:
Factor 1: The adult child must have a “disability.” The FMLA adopts the definition of disability in the American With Disabilities Act (ADA). In 2008, amendments to ADA significantly expanded the definition of “disability” and clarified that the term “disability” was to be construed in favor of broad coverage. The Administrator’s Interpretation said that this expanded definition of “disability” applies to the FMLA and that the disability could develop at any age, whether as a minor child or an adult.
Factor 2: The adult child must be incapable of self-care because of that disability. An adult child is incapable of self-care if he or she requires active assistance or supervision with three or more activities of daily living (e.g., grooming, hygiene, bathing, eating) or instrumental activities of daily living (e.g., cooking, cleaning, shopping, transportation).
Factor 3: The adult child must have a serious health condition. The serious health condition may be the adult child’s disability or a separate health condition.
Factor 4: The adult child must need care due to the serious health condition. The eligible employee must be needed to provide care (physical or psychological) to the adult child because of the adult child’s serious health condition.
Effect of Administrator’s Interpretation on Military Caregiver Leave: Under the military caregiver leave provisions of the FMLA, a parent of a “son or daughter” who is a covered servicemember may take up to 26 week of leave in a single 12 month period, provided all other requirements for leave are satisfied. Unlike general FMLA leave, the military caregiver leave provision’s definition of “son or daughter” is not restricted by age and thus, the son or daughter may be any age.
The general FMLA provision may, however, become applicable if the son or daughter needs care in subsequent years due to continuing effects of his or her injury while in military service. In this circumstance, the parent may be able to take FMLA leave for that child if the four factors listed above are met.