New FMLA Interpretation Will Increase Leaves for Care of Adult Children

The Department of Labor (DOL) recently issued a new interpretation of Family and Medical Leave Act (FMLA) provisions addressing leave to care for a child over age 18 who has a disabling medical condition. The expanded interpretation will likely result in more leave requests and entitlement for employees seeking time off work to care for adult children with medical needs. 

The FMLA provides up to 12 weeks per year of leave with job protection and continued benefits to eligible employees to care for their children age 17 and under who have serious health conditions. The statute also allows leave to provide care for children 18 years of age or older who are incapable of self-care because of mental or physical disabilities.

Prior to this interpretation there was some question as to whether the adult child's disability must have developed before the child reached age 18 for the parent to be eligible for FMLA leave. The DOL has now clarified that the age of onset of the disability is irrelevant. 

The interpretation also reinforces that the definition of "disability" for purposes of this type of FMLA leave is based on the Americans with Disabilities Act (ADA) as it was amended in 2008. The 2008 ADA amendments significantly expanded the definition of disability to include any impairment that substantially limits a major life activity such as caring for oneself, performing manual tasks, lifting, bending, learning, concentrating and communicating. Any substantial limitation in the operation of a major bodily function such as digestive or brain function also qualifies as a disability. The phrase "substantially limits" is not specifically defined, but a severe or significant restriction is not required to meet the definition. Significantly, the determination of whether the impairment substantially limits a major life activity is made without the effect of any mitigating measures such as medication, prosthetic devices or hearing aids. The only exception is that the benefit of ordinary eyeglasses or contact lenses is considered in evaluating whether someone is substantially limited in the major life activity of seeing.

The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, has taken the position that some impairments will virtually always qualify as disabilities. The EEOC list includes impairments such as deafness, blindness, missing limbs and cancer, about which there is usually little debate. It also includes, among other conditions, intellectual disability, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia, which are often less well-understood and more challenging to verify.

The new FMLA interpretation includes a reminder that under the amended ADA, impairments that are episodic or in remission are disabilities if, when active, they substantially limit any major life activity. Although a condition rises to the level of disability only if it is other than temporary, a condition expected to last fewer than six months may be considered substantially limiting. Also, although pregnancy itself is not a disability, a pregnancy-related impairment such as gestational diabetes may be considered a disability if it substantially limits a major life activity.

In order to qualify for leave to care for a child age 18 or older, the employee requesting leave must show that:

• He or she is the biological, adoptive, foster, step- or legal parent of the adult child or stands "in loco parentis" (meaning in the place of a parent) to that adult child.
• The adult child has a medical condition that qualifies as both a disability as currently defined under the ADA and a serious health condition under the FMLA.
• The child is incapable of self-care due to that condition.
• The child is in need of care due to the condition.

The FMLA regulations define "incapable of self-care" as requiring active assistance or supervision to provide daily self-care in at least three "activities of daily living." These activities include adaptive activities such as caring for one's grooming and hygiene, bathing, dressing, and eating as well as instrumental activities such as cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, and using a post office. Other activities such as managing medications may also qualify. The term "needed to care" encompasses providing psychological comfort and reassurance that would benefit an adult child receiving inpatient or home care. 

A final point addressed in the new interpretation is the interplay between the FMLA's provisions on care for an adult child with a disability and military family caregiver leave. The FMLA provides up to 26 workweeks of leave, measured forward from the date the leave begins, to an eligible employee to care for a son or daughter with a serious injury or illness sustained during or arising out of military service. That leave is per servicemember, per injury, so that even if the servicemember's injury continues to affect him or her after the parent has taken 26 workweeks of leave within a year to provide care, the parent may not take another 26 workweeks to provide care when a new leave year begins. However, the interpretation makes clear that if the servicemember qualifies as an adult child with a disability who is incapable of self-care and in need of care, the parent may continue to qualify in those subsequent years for the 12 workweeks of FMLA leave to care for a family member with a serious health condition.