The #FMLA and the #ADA both require a covered employer to grant medical leave to an employee in certain circumstances.
The U.S. Dept. Of Labor has clarified the definition of “son or daughter” under the Family and Medical Leave Act (FMLA) as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical #disability. A recent “Administrator’s Interpretation” 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.
Congress recognized that:
- a #disabled child’s need for care from a parent may not end when the child reaches the age of 18; and,
- adults who are unable to care for themselves because of a disability have “the same compelling need for parental care” as children under the age of 18.
- The FMLA regulations use the ADA’s definition of disability to define “physical or mental disability” and explicitly incorporates the #ADAAA’s changes to the ADA’s definition of disability into the FMLA regulations. Therefore, the definition of disability should be construed in favor of broad coverage and should not demand extensive analysis.
- The FMLA regulations define “incapable of self-care because of mental or physical disability” as when an adult son or daughter “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ (#ADLs) or ‘instrumental activities of daily living’ (#IADLs).”
- A parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:
(1) has a disability as defined by the ADA;
(2) is incapable of self-care due to that disability;
(3) has a serious health condition; and
(4) is in need of care due to the serious health condition
4. Employees needing leave to care for a son or daughter who have been wounded or sustained an injury or illness during military service may also affected. Acknowledging that the #servicemember's injury could have an impact that lasts beyond the single 12-month period covered by the military caregiver leave entitlement, the interpretation clarified that the servicemember's parent can take FMLA leave to care for a son or daughter in subsequent years because of the adult child's serious health condition, as long as all other FMLA requirements are met.
It is only when ALL four requirements are met that an eligible employee is entitled to FMLA- protected leave to care for his or her adult son or daughter.
Examples of situations applicable to the above guidance will appear in the next ADA Blog.
This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.