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Tuesday, 05 February 2013 14:31

New Interpretation of "Son or Daughter" Expands FMLA Protections for Adult Children

Most employers are aware that eligible employees are entitled to take up to 12 weeks of unpaid, job-protected leave during a 12-month period under the federal Family & Medical Leave Act (“FMLA”) to care for a “son or daughter” who has a serious health condition. While employees will not question taking leave to care for a child under the age of 18, the Department of Labor (“DOL”) has recently interpreted the term “son or daughter” to include adult children who have qualifying disabilities.


Eligibility of Adult Child

The FMLA broadly defines “son or daughter” to include adult children who are incapable of self-care due to mental or physical disability. An employee is entitled to take FMLA leave to care for an adult son or daughter if the child meets all of the following criteria: 1) has a disability as defined by the Americans with Disabilities Act (“ADA”); 2) is incapable of self-care due to the disability; 3) has a serious health condition; and 4) is in need of care due to the serious health condition. Significantly, age of onset of the disability is irrelevant for the FMLA “son or daughter” determination.


1) Disability

The FMLA adopts the ADA’s broad definition of “disability,” which is defined as “an impairment that substantially limits one or more major life activities." The term “major life activities” has been interpreted to include caring for oneself, seeing, hearing, eating, sleeping, walking, etc. The ADA Amendments of 2008 expanded the definition of “major life activities” to include, “operation of major bodily functions” such as “functions of immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, and reproductive functions.”


2) Incapable of Self-Care due to Disability

To qualify as an FMLA “son or daughter,” the child must also "be incapable of self-care" because of the disability. This is a fact-specific determination based on the child's condition at the time of the requested leave. A child is incapable of self-care if he or she 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 hygiene, dressing, eating, etc., while IADLs include cooking, cleaning, transportation, use of telephone, etc.


An example of an adult child who may be ADA disabled but not considered an FMLA “son or daughter” would be an employee's diabetic son (an ADA disability), who lives independently and requires no assistance has a skiing accident that hospitalizes him for a short period, but does not render him temporarily or permanently disabled. This child is disabled, but is not incapable of self-care resulting from his or her diabetic disability.


3) Serious Health Condition

In addition, the adult child must have a “serious health condition” as defined by the FMLA. A serious health condition includes illness, injury, or impairment, among other conditions. Practically speaking, most disabilities under the broad ADA definition will meet the “serious health condition” definition of the FMLA.


4) In Need of Care

The parent must also be needed to care for the child due to the serious health condition. A parent can be “needed to care” if the adult child is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety or if the parent is needed to provide psychological comfort and reassurance that would be beneficial to a child receiving inpatient or home care.


Finally, this interpretation also impacts the FMLA’s Military Care Giver Leave provision, which allows a parent of a service member who sustains a serious injury or illness during service to take leave for up to 26 weeks. With the interpretation that age of onset is not relevant for “son or daughter” determinations, a parent who exhausts their 26 week leave may now take a subsequent 12 week leave under the “son or daughter” provision in subsequent years.


For more information about this alert please contact Attorney Peter Culp or another employment law attorney with the Dempsey Law Firm.

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