The Department of Labor’s Wage and Hour Division has issued an Administrator’s Interpretation (AI) clarifying the definition of “son or daughter” under the Family and Medical Leave Act (FMLA) when leave is sought to care for an adult child incapacitated by a mental or physical disability. The guidance explains that the FMLA entitlement applies regardless of when the mental or physical disability in the child began; discusses how the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) – which expanded the definition of disability under the Americans with Disabilities Act (ADA) – affects the employee’s ability to take leave to care for an adult child; and examines the availability of FMLA leave to care for an adult child who becomes disabled due to military service.

Generally, the FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. The Act’s definition of “son or daughter” includes adult children who are “incapable of self-care because of a mental or physical disability.” Therefore, in order for an employee to qualify for FMLA leave to care for a child age 18 or older, the child must have a disability as defined by the ADA; be incapable of self-care due to that disability; have a serious health condition; and be in need of care due to the serious health condition. The AI notes that while the FMLA regulations “do not explicitly address whether it is relevant if the disability occurs before or after the son or daughter turns 18 years old,” the statute’s legislative history has led the agency to conclude that “the age of the onset of the disability is irrelevant to the determination of whether an individual is considered a ‘son or daughter’ under the FMLA.”

With respect to the definition of “disability,” the AI explains that the FMLA regulations incorporated the changes made by the ADAAA, with respect to the ADA’s definition of the term “disability”. Therefore, “in considering an employee’s request for FMLA leave to care for an adult child because of that child’s serious health condition, the employer must first consider if the son or daughter, in fact, has a disability as defined in the ADA.” As amended by the ADAAA, this definition “shall be construed in favor of broad coverage” and “should not demand extensive analysis.” In order to qualify as an adult “son or daughter” for purposes of the FMLA, however, the adult child must also be “incapable of self-care” because of the disability and have a “serious health condition” as defined by the FMLA. Additionally, the parent must be “needed to care” for the adult child because of the serious health condition. The AI provides examples of each of these qualifying factors.

Finally, the guidance explains that under certain circumstances parents of military service members who sustain serious injuries or illnesses on account of their service might be entitled to take FMLA beyond the 26 work weeks in a 12-month period allotted under the military caregiver leave provisions of the statute. The AI “clarifies that the service member’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.” By way of example, the AI explains that an employee who has taken the 26 workweeks of military caregiver leave to tend to his adult child, a wounded member of the military, may take up to 12 workweeks of FMLA leave the following year to care for the same adult child who requires follow-up care for the earlier injuries.

Photo credit: Kirby Hamilton