• U.S. Department of Labor Clarifies FMLA’s Adult Child Requirements
  • January 31, 2013 | Author: David J. Freedman
  • Law Firm: Barley Snyder - Lancaster Office
  • On January 14, 2013, the United States Department of Labor (“DOL”) released an administrator’s interpretation providing clarification on the definition of the term “son or daughter” under the Family Medical Leave Act (“FMLA”). Among other things, the FMLA entitles an eligible employee to take up to twelve weeks of job-protected leave annually to care for a “son or daughter” with a serious health condition. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis,” if the child is under 18 years old. Children over 18 are not covered under the FMLA unless they are “incapable of self-care because of a mental or physical disability.” An adult child satisfies that requirement if the child requires active assistance or supervision “to provide daily self-care in three or more ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs),” such as cooking, cleaning, grooming, bathing, dressing, eating, shopping, taking public transportation, and paying bills.

    Neither the FMLA, nor its implementing regulations, address whether an employee is entitled to leave to care for an adult child who does not become “incapable of self-care” until after the child turns 18. The DOL’s interpretive guidance clarifies that whether an adult child qualifies as a “son or daughter” under the FMLA must be determined at the time when leave is to commence. As a result, whether the child’s disability arises before or after the child’s 18th birthday is irrelevant. Instead, employers should focus on the child’s current condition.

    The interpretation also clarifies the interplay between the FMLA’s adult child care requirements and the FMLA’s “military caregiver” provisions. Specifically, an employee is entitled to take up to 26 weeks of job-protected leave in a single twelve-month period to care for an adult child injured during combat, regardless of whether that child is capable of self-care. Once this military caregiver leave expires, however, the employee may take additional leave in subsequent years to care for the same adult child with the same injury only if the adult child, at the time additional leave is to commence, has a mental or physical impairment requiring active assistance or supervision in three or more ADLs or IADLs.

    As covered employers know, the FMLA presents a minefield of compliance issues.