On January 14, 2013, the Wage and Hour Division (WHD) of the Department of Labor published an interpretation on the definition of “son or daughter” as it applies to someone 18 years old or older and incapable of self-care because of a mental or physical disability.
This means that an otherwise eligible employee will be entitled to take FMLA leave to care for an adult child if that child meets all of the following:
•Has a disability as defined by the Americans with Disabilities Act, as amended (ADA),
•Is incapable of self-care because of that disability,
•Has a serious health condition, and
•Is in need of care due to the serious health condition.
The guidance states that the FMLA utilizes the definition of a disability from the ADA: a physical or mental impairment that substantially limits a major life activity. Employers, in considering an employee’s request for FMLA leave to care for an adult child, must first consider if the child has a disability. Under the new definition, while pregnancy itself is not a disability, pregnancy-related impairments, such as gestational diabetes, may be disabilities if they substantially limit one or more major life activities. Therefore, employees may be entitled to take FMLA leave to care for their adult, pregnant daughters who suffer from such conditions.
The FMLA defines “incapable of self-care” as when an adult child 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).
The determination of whether an adult child is incapable of self-care because of a disability will depend upon the specific facts involved in the situation. It must be made based on the individual’s condition at the time of the requested leave. The determination must focus on whether the individual currently needs active assistance or supervision in performing three or more ADLs or IADLs. It must also be based on all relevant factors that might impact the individual’s ability to perform ADLs or IADLs without active help or supervision, including, for example, the current effect of any episodic impairment. If an adult child is determined to have a disability but is capable of self-care, he or she will not qualify as a “son or daughter” under the FMLA.
The adult child would also need to have a serious health condition. However, most impairments will satisfy both the ADA’s definition of “disability” and the FMLA’s definition of “serious health condition,” even though the criteria are different.
The final requirement is that the employee must be “needed to care” for his or her child because of the serious health condition. This can include the child being unable to care for his or her own basic medical, hygienic, or nutritional needs; safety; or transportation to the doctor. This also includes providing psychological comfort and reassurance that would be beneficial; for instance, simply holding the child’s hand. The child need not be receiving inpatient care.
The DOL also clarifies that the age of the onset of the disability is irrelevant to the determination of whether an individual is a “son or daughter” under the FMLA.
A child whose disability did not begin until adulthood could be considered a “son or daughter” for purposes of the FMLA. For example, if an employee’s 26-year-old son was involved in a serious accident that left him disabled and the employee was needed to care for the son because the son was incapable of self-care because of the disability, the employee would be entitled to take FMLA leave to care for his or her son.
The result of the changes in the ADA, as pointed out by the DOL, is that more employees may take FMLA leave to care for their adult children with disabilities. Employers should be aware of these interpretive changes in such situations.