Under the Family Medical Leave Act (“FMLA”), eligible employees are provided up to twelve weeks of unpaid, job-protected leave per year. Eligible employees can take FMLA leave for, among other things, the birth and care of a newborn child. Although the FMLA broadly defines a “son or daughter” under this provision to include a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis”, it does not expressly confirm whether employees may take leave to care for a son or daughter over the age of eighteen.
In reality, many parents remain the responsible caregiver to an adult child who cannot care for themselves due to a mental or physical disability. For these parents, the age of eighteen does not signal the end of their care duties; indeed, the care they provide may continue for many more decades.
The Department of Labor (“DOL”) recently issued an Administrator’s Interpretation wherein it clarified that FMLA leave may be available for adult sons and daughters. In order to qualify for FMLA leave to care for an adult child, the adult child must; (1) have a disability as defined by the Americans with Disabilities Act (“ADA”), (2) have a serious health condition, (3) be incapable of self care due to his or her disability, and (4) be in need of care due to their health condition.
Prior issuing this interpretation there was significant debate as to whether the adult child’s disability must have developed before the child reached age 18. The Administrator’s Interpretation now clarifies that the age of onset of the disability is irrelevant. Additionally, the Interpretation reinforces that the ADA, as amended in 2008, must be used to when defining “disability.”
The Administrator’s Interpretation will certainly lead to more leave requests for employees seeking time off to care for adult children with special needs and employer’s should be prepared to accommodate employee’s under the new Interpretation. Accordingly, Employers would be well-served to review this Administrative Interpretation and to update policies and manuals as necessary to become compliant. In particular, employers should give special attention to ensure that the adult child triggers all four elements before a leave is approved.
W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at firstname.lastname@example.org or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Article previously published on McBrayer’s Employment Law Blog, mcbrayeremploymentlaw.com.