April 8, 2016

by: Guest Contributor

Your Rights Under FMLA to Care for an Adult Child with a Disability

This week’s blog was written by Colleen Bennett, our Director of Human Resources. Colleen has been in the field for over 30 years and is certified as a Senior Professional in Human Resources as well as the Society for Human Resource Management – Senior Certified Professional.

The Family and Medical Leave Act (FMLA) was passed in 1993, revised in 2009, and again in 2013.  Of all federal employment laws, FMLA is one of the most popular and beneficial to employees.

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken the leave.  Eligible employees have the right to use FMLA leave in three different absence types:  continuous, intermittent, and reduced work schedule.  Leaves that are taken in separate blocks of time for a single, qualifying medical or family reason are called intermittent.  Eligible employees are entitled to a total of 12 workweeks of leave in a 12-month period for:

1. the birth of a child and to care for the newborn child within one year of birth;
2. the placement of a child for adoption or foster care within one year of placement;
3. to care for the employee’s spouse, child or parent who has a serious health condition;
4. a serious health condition that makes the employee unable to perform the essential functions of his or her job; and
5. any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty”.

A child under 18 years of age is a “son or daughter” under the FMLA without regard to whether or not the child has a disability. An eligible employee requesting FMLA leave to care for a son or daughter under 18 years of age only has to show a need to care for the child due to a serious health condition.   The FMLA definition of “son or daughter” also includes a child of a person standing in loco parentis meaning those with day-to-day responsibilities to care for or financially support a child.

In 2013, however, the Department of Labor (DOL) determined that additional guidance was needed regarding the definition of “son or daughter” as it applies to an employee seeking to take leave for a son or daughter with a disability who is 18 years of age or older. This 2013 Administrator’s Interpretation provides guidance on the impact of the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) on a parent’s ability to take FMLA leave to care for an adult son or daughter with a disability.

In order to meet this FMLA definition of a “son or daughter,” an adult child must have a mental or physical disability and be incapable of self-care because of that disability. The FMLA regulations adopt the ADA’s definition of “disability” as a physical or mental impairment that substantially limits a major life activity as interpreted by the EEOC.  The FMLA regulations define “incapable of self-care because of mental or physical disability” to mean an adult son or daughter who “require active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ or ‘instrumental activities of daily living’.”

However, it is only when all four of the following requirements are met that an eligible employee is entitled to FMLA-protected leave to care for his or her adult son or daughter:

1.  has a disability as defined by the ADA which substantially limit at least one major life activity;
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

The FMLA regulations require that the adult son or daughter with a disability must meet the four requirements at the time that FMLA leave is to commence.”  The regulations, however, do not explicitly address whether it is relevant if the disability occurs before or after the son or daughter turns 18 years old.  It is the DOL’s opinion that the age of the onset of the disability is irrelevant to the determination of whether an employee is entitled to exercise his or her FMLA rights to care for an adult son or daughter with a disability.

In addition, the Equal Employment Opportunity Commission (EEOC), the enforcement agency for the ADA, has broadly interpreted the ADAAA.  As a result, the DOL noted that under EEOC guidance, “Some impairments will virtually always qualify as disabilities because, by their very nature, they substantially limit at least one major life activity.” Impairments that “should easily be concluded” to be ADA disabilities include deafness, blindness, intellectual disability, missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, multiple sclerosis, human immunodeficiency virus infection, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.

The DOL summarized, “The ADAAA’s expanded definition of the term ‘disability’ will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities provided that such adult children are incapable of self-care due to their disability and their parents are needed to care for them due to their serious health condition.”

Source:  Department of Labor, www.dol.gov/whd/fmla/adultchildfaqs.htm

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