Original article from United Benefit Advisors
By Thomas M. Lucas
The number of employees who may utilize Family and Medical Leave Act leave to care for their adult children with disabilities is likely to increase under a recent interpretation of the FMLA issued by the Wage and Hour
Division (“WHD”) of the U.S. Department of Labor in January, 2013. The DOL’s Interpretation confirms that the age of a child at the onset of a disability is not relevant in determining a parent’s entitlement to leave to care for a child with a disability. Administrator’s Interpretation No. 2013-1 (Jan. 14, 2013). The Interpretation also adopts the broad definition of “disability” under the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) for FMLA purposes, and clarifies the availability of FMLA leave for parents to care for a child who becomes disabled during military service.
The FMLA entitles an eligible employee to twelve (12) workweeks of unpaid leave during a 12-month period to care for a child with a serious health condition. A “son or daughter” is defined as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is … 18 years of age or older and incapable of self-care because of a mental or physical disability.” The new DOL Interpretation states that a parent may take FMLA leave to care for an adult child if the child: 1) has a disability as defined by the Americans with Disabilities Act (“ADA”) and ADAAA; 2) is incapable of self-care due to that disability; 3) has a serious health condition; and 4) is in need of care because of the serious health condition.
The FMLA regulations provide that an adult child is “incapable of self-care because of mental or physical disability” when he or she “requires 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’.” Activities of daily living (“ADLs”) include caring appropriately for one’s grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living (“IADLs”) include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, and using a post office. 29 C.F.R. § 825.122(c)(1).
An issue which has been unclear in the past is whether the onset of the disability must occur before the child is 18 and continue in adulthood. In this interpretation, the WHD observed that Congress recognized a disabled child’s need for parental care which may not end when the child turns 18, and that adults who are unable to care for themselves because of a disability have “the same compelling need for parental care” as children under 18. The WHD held that the child’s age at the onset of a disability is irrelevant in determining whether an individual is considered a “son or daughter” under the FMLA.
The WHD also specified that it will adopt the ADAAA’s expanded definition of disability and “major life activities,” and interpret “disability” “in favor of broad coverage.” The Interpretation predicts that “[T]he ADAAA’s broad definition of ‘disability’ will therefore increase the number of adult children with disabilities for whom parents may take FMLA-protected leave if the adult son or daughter is incapable of self-care because of the disability and in need of care due to a serious health condition.”
For example, the WHD will follow the ADAAA’s regulations regarding the meaning of “substantially limited” and the use of mitigating measures. It also adopts the regulations concerning whether episodic impairments constitute a “disability” within the meaning of the ADA. The WHD identified impairments that “should easily be concluded” as substantially limiting, including, deafness, blindness, intellectual disability,missing limbs or mobility impairments requiring the use of a wheelchair, autism,cancer, cerebral palsy, diabetes, epilepsy, multiple sclerosis, Human Immunodeficiency Virus (“HIV”) infection, muscular dystrophy, major depressive disorder, bipolar disorder,post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
On the question of whether a parent may be “needed to care” for his or her adult child, the WHD noted that condition would be met if the serious health condition resulted in the child being “unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor.” The Interpretation also notes that the term “needed to care” includes the provision of psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care.
Under the FMLA’s military caregiver provision, a parent of a covered service member who sustained a serious injury or illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period if all other requirements are met. The interpretation clarifies that the service member’s parent can take FMLA leave to care for an adult child in subsequent years due to the child’s serious health condition. Employers should also review their FMLA policies and procedures and training programs to ensure that these new interpretations by the DOL are accounted for those processes.