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New DOL guidance on FMLA leave to care for adult children

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in FMLA Guidelines,Human Resources

It has always been understood that employees are entitled to take FMLA leave to care for minor children with serious health conditions. But it’s been less clear how the FMLA applies to employees who need time off to care for an adult son or daughter. Now the U.S. Department of Labor’s Wage and Hour Division (WHD) has weighed in with guidance.

The interplay between the FMLA and the ADA lies at the heart of the matter. According to WHD Administrator’s Interpretation No. 2013-1, issued Jan. 14, 2013:

A parent is entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the child:

  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
  4. Needs care due to the serious health condition.

Only when all four requirements are met is an eligible employee entitled to FMLA-protected leave to care for his or her adult child.

Note: The Administrator’s Interpretation notes that employers should broadly define “disability,” as required by the Americans with Disabilities Act Amendments Act of 2008.

The interpretation makes clear 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.” That means an employee may be entitled to use FMLA leave to care for an adult child who is disabled as a result of an old condition (such as a birth defect or childhood illness) or a recent illness or injury, such as a car accident.

That distinction is crucial because, as the guidance notes, existing FMLA regulations “do not explicitly address whether it is relevant if the disability occurs before or after the son or daughter turns 18 years old.” The WHD based its conclusion on an analysis of the FMLA’s legislative history.

The WHD guidance includes hypothetical examples of scenarios in which employees may and may not be entitled to take FMLA leave to care for adult children with serious health conditions.

Final note: Administrator’s Interpretation No. 2013-1 also clarifies that parents of military service members injured in the line of duty may be entitled to take more than 26 workweeks of FMLA leave in a 12-month period, as permitted by the FMLA's military caregiver leave provisions.

Advice: This is a complex issue. Consult with your attorney if an employee has an adult child with a serious health condition or disability.

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