U.S. DOL Issues Guidance on FMLA to Care for Adult Children with a Disability

The U.S. Department of Labor ("DOL") recently issued an administrator’s interpretation explaining that eligible employees are entitled to Family and Medical Leave Act ("FMLA") leave to care for an adult son or daughter who is disabled and has a serious health condition, regardless of the child’s age when the disability commenced. The Guidance also recognized that, with the expanded definition of disability under the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and the FMLA’s military caregiver leave provisions, this interpretation will likely expand the number of employees who will qualify for FMLA leave.

Under the FMLA, eligible employees are entitled to up to 12 weeks of unpaid job-protected leave to care for a son or daughter with a serious health condition. "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: (1) under 18 years of age; or (2) 18 years of age or older and incapable of self-care because of a mental or physical disability."

The existing FMLA regulations do not explicitly state whether the onset date of an adult son's or daughter's disability affects FMLA eligibility; however, the DOL concluded that the disability onset date is not relevant to determining whether an individual meets the FMLA’s definition of "son or daughter."

The DOL's Guidance also recognized that, because the FMLA's regulations incorporate the ADA's definition of disability, the ADAAA's broadened definition of disability will likely increase the number adult children who will fall within the FMLA's definition of "son or daughter;" however, the Guidance acknowledged that the FMLA still requires an employee seeking to take leave to care for a disabled adult son or daughter to prove the following additional facts: (1) the child is incapable of self-care because of the disability; (2) the child has a serious health condition (while the definition of disability and serious health condition are not the same, many impairments that constitute disabilities will also be considered serious health conditions); and (3) the parent must be needed to care for the child due to the serious health condition, including providing basic medical, hygienic or nutritional needs or psychological comfort that would be beneficial.

The Guidance further recognized that defining son or daughter as including adult disabled children, regardless of disability onset date, will sweep in adult children who are injured during the course of military service. Under the FMLA’s military caregiver provisions, a parent of a covered service member who sustained a serious injury or illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period if all other requirements are met. The DOL’s Guidance clarifies that, because the onset date of the disability is irrelevant, parents of adult sons and daughters who have been wounded or who have sustained an injury or illness in military service may be able to take FMLA leave beyond that provided under the special military caregiver leave provisions.

In sum, given the DOL's new Guidance, employers should reevaluate their procedures regarding FMLA requests to care for disabled adult children.