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New DOL Guidance on Using FMLA Leave to Care for an Adult Child

The Department of Labor recently issued a new administrative
interpretation regarding how the Family and Medical Leave Act is interpreted to
allow an employee to care for an adult child
. Ordinarily, an employee is
entitled to take FMLA leave to care for a child with a “serious health
condition.” A child is defined as a son or daughter under 18 years old, or a
son or daughter older than 18 who is “incapable of self care” because of a
disability. This interpretation helps to clarify what the DOL means by
incapable of self care, and what qualifies as a disability under the ADA.

Based on the DOL’s reading of the FMLA and the definition of
disability found in the ADA, an employee attempting to take leave to care for
an adult child needs to show four factors
: 1) the child has a disability as
defined by the ADA; 2) the child is incapable of self-care as a result of the
disability; 3) the child has a serious health condition; 4) the child is in
need of care as a result of the serious health condition.

Overall, the guidance simply clarifies the DOL’s existing
policy for approaching the adult child requirements of the FMLA. First, the DOL
confirmed that the age of the child at the onset of the disability is not important.
The FMLA covers adult children who suffered for a disability prior to turning
18 as well as those whose disability began after age 18. The DOL based this broad
interpretation on the Act’s legislative history, as well as the DOL’s
enforcement experience.

The DOL also confirmed the Equal Employment Opportunity Commission’s
broad reading of the Americans With Disabilities Act Amendment Act, which
expanded the definition of a disability to enable more parents to take FMLA
leave. In general, the ADAAA improves the ability of parents to take FMLA leave
to care to adult children by broadening the definition of “major life
activities” so that more children qualify as disabled when they are impaired.

In the examples section, the DOL attempts to provide
guidance to employers who are faced with employees who want to take FMLA leave
to care for an injured adult child. The DOL notes that under the ADAAA’s
relaxed disability definition, an injury that causes the child to be
substantially limited in a major life function (such as walking) for a period
of months would qualify the child as disabled, as thus would qualify the parent
for FMLA leave. The difficulty ensues when an employer cannot receive an
accurate prediction from the employee’s health care provider regarding the
length of the child’s rehabilitation. The employer cannot gauge the necessity
of the parent’s care without such an estimate. Simply put, a serious health
condition that requires the parent to care for the child will likely qualify as
a disability that leaves the child incapable of self-care.

Additionally, the DOL confirmed that the FMLA allows the
parent of an injured military member to take additional FMLA leave to act as a
caregiver. Given the long length of many military injuries, parents of service
members can take additional leave when necessary. Parents are allowed 26
workweeks of leave under the FMLA to care for an injured military child, and
can be allowed to take that leave in subsequent years if the child’s disability

In general, the DOL guidance supports the
proposition that more parents are now able to utilize the FMLA to care for
their children
. As long as the child has a disability as described under the
ADA’s expanded definition and is incapable of self care (thus requiring
parental care), the parent should be able to qualify for FMLA leave.