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    February
    06
    2013

    Clarifying FMLA Leave Entitlements to Care for Adult Children

    Margaret R. Kurlinski

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    Employees have expanded rights under the Family Medical Leave Act, under clarifications issued Jan. 14, 2013, by the U.S. Department of Labor. In this article, Milwaukee lawyer Meg Kurlinsi explains how the changes impact leave to care for adult children.
    Clarifying FMLA Leave Entitlements to Care for Adult Children

    Feb. 6, 2013 – The U.S. Department of Labor’s Wage and Hour Division (Wage & Hour Division) recently clarified the definition of “son or daughter” as it relates to employees seeking leave under the Family and Medical Leave Act (FMLA) to care for an adult child.

    On Jan. 14, the Wage an Hour Division issued Administrator’s Interpretation, which clarifies that the age of a son or daughter at the onset of a disability is not relevant in determining a parent’s entitlement to FMLA leave.

    The Interpretation also explains how the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) that expanded the definition of “disability” under the Americans with Disabilities Act of 1990 (ADA) will increase the number of adult children for whom parents may take FMLA-protected leave.

    Finally, the Interpretation provides guidance on how the expanded definition of disability may provide parents of adult children who have sustained an injury or illness while in military service with additional FMLA leave. 

    Age of Onset of Disability is Irrelevant 

    The FMLA entitles an otherwise eligible employee to take up to twelve workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. A child under 18 years of age is a “son” or “daughter” for purposes of FMLA leave, without regard to disability, and an otherwise eligible employee requesting FMLA leave to care for such child must show a need to care for the child due to a serious health condition.

    In contrast, for an adult child to meet the FMLA’s definition of a “son” or “daughter,” the adult child must:

    1. have a disability as defined by the ADA;
    2. be incapable of self-care due to that disability;
    3. have a serious health condition, and;
    4. be in need of care due to the serious health condition. The FMLA regulations do not address whether the disability must have occurred before or after the son or daughter turned 18 years old.

    The Interpretation resolves this issue by determining that the child’s age at the onset of the disability is irrelevant under the FMLA. Accordingly, an adult child who develops a disability may qualify as a “son” or “daughter” under the FMLA.

    More Adult Children Qualify for FMLA Care 

    The Interpretation goes on to explain that because the FMLA regulations cite to the ADA’s definition of “disability” when defining adult children eligible for FMLA care, the expansion of the definition of disability by the ADAAA will necessarily increase the number of adult children for whom employees may seek FMLA leave. The Wage & Hour Division provides several examples to illustrate the interaction between the FMLA and ADAAA:

    Example: An employee’s 37-year old daughter suffers a shattered pelvis in a car accident, which substantially limits her in a number of major life activities. Because of this injury, the daughter is hospitalized for two weeks and is under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living, such as bathing, dressing and maintaining a residence, she will qualify as an adult “daughter” under the FMLA, as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA and, therefore, her parent would be entitled to take FMLA-protected leave to provide care for the daughter immediately and throughout the time that the daughter continues to be incapable of self-care because of the disability. 

    Example: An employee’s 25-year old son has diabetes but lives independently and does not need assistance with any activities of daily living. Although the young man’s diabetes qualifies as a disability under the ADA, as it substantially limits a major life activity (i.e., endocrine function), he will not be considered an adult “son” for purposes of the FMLA because he is capable of providing daily self-care without assistance or supervision. Therefore, if the son is admitted to a hospital overnight for observation due to a skiing accident that does not render him disabled, his parent will not be entitled to take FMLA leave to care for him because he is an adult and not incapable of self-care.

    Margaret R. Kurlinskicom mkurlinski gklaw Margaret R. Kurlinski, Washington Univ. 2005, is an associate member of the Labor and Employment Practice Group at Godfrey & Kahn S.C., Milwaukee.

    Additional Leave Available for Parents of Service Members 

    Pursuant to the service member provisions of the FMLA, parents are entitled to up to 26 weeks of leave in a single 12-month period to care for a family member, which includes adult children, who are wounded or who sustained an injury or illness while serving in the military.

    The Interpretation clarifies that, in addition to the service member leave, parents may be eligible for up to 12 weeks of additional leave in subsequent years to care for an adult child whose military service injury or illness also satisfies the conditions of leave to care for an adult child. The Wage and Hour Division reasons that, because adult service member’s illnesses or injuries may also qualify as disabilities, such individuals may be entitled to the general caregiver leave benefits afforded to adult children. The Wage & Hour Division provides an example to illustrate its point:

    Example: A father has exhausted his 26 work weeks of military caregiver leave to care for his 20-year old son, a returning service member who sustained extensive burn injuries. In the next FMLA leave year, the father seeks leave from his employer to care for his son as he undergoes and recovers from additional surgeries and procedures. The father will be entitled to take up to 12 workweeks of FMLA-protected leave to care for his son because the burn injuries that substantially limit his son’s ability to perform manual tasks constitute a disability under the ADA, the son is incapable of self-care due to a disability (i.e., he needs active assistance or supervision in bathing, dressing and eating), the son’s burn injuries are a serious health condition because they require continuing treatment by a health care provider, and the father is “needed to care” for the son.

    Conclusion 

    This Interpretation of the FMLA, and consequently the ADA, is consistent with previous Administrator’s Interpretations that have broadly construed employees’ leave entitlements under the FMLA. The Interpretation serves as a reminder to all employers to remain aware of the effects that changes to one law will have on related laws.