The United States Department of Labor, Wage and Hour Division, has issued Administrator’s Interpretation No. 2013-1 (“Interpretation) regarding when an employee can take time off from work under the Family and Medical Leave Act (FMLA) to care for an adult child with a serious health condition.  The Interpretation provides extremely helpful clarifications but does not make any fundamental changes to the existing rules.

The Interpretation clarifies 3 key points:

  •   An adult child’s disability can occur or manifest itself before or after the child is age 18;
  •   The expanded definition of “disability” implemented pursuant to the Americans with Disabilities Act Amendments Act (ADAAA) applies to the definition of an adult child with a  “disability” under the FMLA; and
  •   A parent who exhausts the 26 weeks of FMLA military caregiver leave may take up to 12 weeks of regular FMLA leave in subsequent years to care for a son or daughter with a serious health condition if other FMLA requirements are met.

Here are the details.

Age at Onset of Child’s Disability

The FMLA regulations define a “son or daughter” 18 years of age or older as one who is “‘incapable of self-care because of a mental or physical disability’ at the time that FMLA leave is to commence.”  The Administrator’s interpretation clarifies that the age of the child at the onset of the disability is irrelevant to the determination of whether an individual is considered a “son or daughter” under the FMLA.

Requirements for FMLA Leave for an Adult Child

The Interpretation provides a clear 4-point analysis to guide employers and parents regarding when an employee may take FMLA time to care for an adult child.

1)      The adult child must have a disability as defined by the ADAAA.  The ADAAA’s expanded definition of “disability” applies to the determination of whether a son or daughter age 18 or older has a disability for purposes of parental FMLA leave to care for that child with a serious health condition. The DOL endorses the ADAAA’s rule that the definition of disability should “be construed in favor of broad coverage” and “should not demand extensive analysis”.   As a result, many more adult children will have a “disability” that satisfies the first step of the FMLA adult child analysis.

2)      The adult child must be incapable of self-care because of the disability.  Due to the applicability of the ADAAA it is now easier for an adult child’s condition to meet the definition of a “disability.”  However, the adult child must still be incapable of self-care because of 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).” 29 C.F.R. § 825.122(c)(1):

  • Activities of daily living include, without limitation, adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing, eating, and taking medication.
  • Instrumental activities of daily living include, without limitation,  cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.” Id.

According to the Interpretation, the determination under the FMLA of whether an adult son or daughter is incapable of self-care due to a disability is a fact-specific, individualized determination that must focus on whether the individual currently needs active assistance or supervision in performing three or more ADLs or IADLs at the time of the requested leave.

3)      The adult child must have 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. 29 C.F.R. § 825.113(a). The interpretation makes clear that a single condition may satisfy both the ADAAA’s expanded definition of “disability” and the definition of “serious health condition,” even though the statutory tests are different.

4)      The employee parent must be “needed to care” for the adult child because of the serious health condition.  The parent may be needed to care for an 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 to a son or daughter with a serious health condition who is receiving inpatient or home care. 29 C.F.R. §  825.124(a).

FMLA Leave to Care for Adult Children Wounded in Military Service

Under the FMLA military caregiver provision, an employee may take up to 26 workweeks of FMLA leave in a single 12-month period to care for a covered servicemember who sustains a serious injury or illness.  The service member’s injury or illness, however, may have an impact that lasts beyond the single 12-month period covered by the military caregiver leave entitlement. The Interpretation clarifies that even after taking the 26 weeks of caregiver leave, the servicemember’s parent may be able to take up to 12 workweeks of regular FMLA leave to care for the ill or injured son or daughter in subsequent years if the adult child’s condition continues to qualify as serious health condition, as long as all other FMLA requirements are met.

Along with the Interpretation, the DOL has posted a series of Questions and Answers and Fact Sheet #28K concerning the use of FMLA leave to care for an adult child. These materials, as well as the Interpretation, provide useful examples for employers.

What is Reed Group doing?  Reed Group’s services and software are in compliance with the DOL’s Administrative Interpretation No. 2013-1.  We are training our staff to be familiar with the DOL’s clarifications for handling FMLA requests to care for an adult child.

What should employers do? The new interpretation does not require any change in processes for handling FMLA leave requests for an adult child.  However, employers should (1) review their FMLA policies to ensure that any definitions or mention of “son or daughter” under the FMLA is in line with the Interpretation’s guidance, and (2) train HR and benefits personnel regarding the Interpretation’s clarifications.

Employers and Consultants wanting more information – Please call 866.218.4650 with any questions or for more information.  You can also visit Reed Group’s website to view all of our absence management products, tools, and services.