*By Stephen S. Zashin, Esq.
The Department of Labor (“DOL”) recently issued an Administrator Interpretation Letter that addressed when parents may take leave under the Family Medical Leave Act (“FMLA”) to care for their adult children who have a serious health condition. Under the FMLA, parents of adult children may take FMLA leave to care for an adult child when the adult child suffers from a serious health condition and is also incapable of self-care because of a physical or mental disability. Previously, the DOL issued two Opinion Letters regarding this issue which led to some confusion. As a result, the DOL received several inquiries concerning whether the timing of the onset of the adult child’s disability was relevant to determining the parent’s entitlement to FMLA leave to care for the adult child. Ultimately, the DOL concluded that the timing of the onset of a disability was not relevant to determining the parent’s entitlement to take FMLA leave.
The Family Medical Leave Act (“FMLA”) provides that an employee may take FMLA leave to care for certain family members, including a “son” or “daughter,” who has a “serious health condition.” Under the FMLA, a son or daughter is defined as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is – (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental of physical disability.” Based on this definition, employees who meet all of the requirements of the FMLA are entitled to care for their adult children who are 18 years or older when the child is also “incapable of self-care because of a physical or mental disability.”
The DOL issued an Opinion Letter in 1994 and concluded that “the age on which the child became disabled is not a factor for determining an eligible employee’s entitlement to leave.” See Wage and Hour Opinion Letter FMLA 51. Later, the DOL issued an Opinion Letter in 2003 and emphasized that a child with a disability has a continued need for care in adulthood. See Wage and Hour Opinion Letter FMLA 2003-2. This Opinion Letter suggested that the child must have been disabled prior to turning 18 years of age in order to trigger the entitlement to FMLA leave under this provision. Within its recent Administrator Interpretation Letter, the DOL clarified that “It is the Administrator’s interpretation that the age of the onset of the disability is irrelevant….” Instead, there are four requirements a parent must meet in order to take leave to care for an adult child: (1) the adult child has a disability as defined by the Americans with Disabilities Act (ADA); (2) the adult child is incapable of self-care due to that disability; (3) the adult child has a serious health condition; and, (4) the adult child is in need of care due to a serious health condition.
The DOL also took the opportunity to address the meaning of the term “disability.” The DOL cited to the language of the ADA and noted that the definition of the term disability “shall be construed in favor of broad coverage.” The DOL noted that there is not minimum duration required for an impairment to be considered a disability. Indeed, the DOL, citing to the ADA, noted that even an impairment expected to last less than 6 months can constitute a disability.
The DOL illustrated these principles in a two hypothetical examples. First, the DOL considered a 37-year old daughter who suffered a shattered pelvis in a car accident. The daughter required hospital care for two weeks and then was unable to walk long distances for 6 months and needed help bathing, dressing and maintaining her residence. The daughter developed the condition well after she turned 18 years of age. The DOL noted that, assuming all the other requirements of the FMLA were met, the parent could take FMLA leave to care for the daughter because the daughter: (1) had a disability, (2) was incapable of self-care, (3) had a serious health condition, and (4) needed care due to the serious health condition. In another hypothetical example the DOL considered a 25-year old son who has diabetes, lives independently and does not need assistance caring for himself. The DOL concluded that the son had a disability, but that the parent was not entitled to FMLA leave because the son could care for himself. Although, the DOL noted that if the son was unable to walk and care for his own hygiene due to complications related to his diabetes, then the parent would be entitled to FMLA leave.
These examples illustrate that the new clarifying interpretation by the DOL has expanded greatly the circumstances upon which a parent can take leave for the serious health condition of an adult child. As a result, employers must reevaluate their policies and the application of their policies to comply with this new clarification.
* Stephen Zashin, an OSBA Certified Specialist in Labor and Employment Law and the head of the firm’s Employment and Labor group, regularly counsels employers on leave of absence and FMLA issues and defends employers in FMLA litigation. For questions about employee leaves of absence or the FMLA, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.
