Last month, the United States Department of Labor (DOL) clarified when a qualified employee can take a leave under the Family & Medical Leave Act (FMLA) to care for an adult child. As the Interpretation explains, the FMLA permits eligible employees to take up to 12 weeks off from work to care for a son or daughter who has a serious health condition. The FMLA defines a “son or daughter” to include a biological, adopted, or foster child, as well as a stepchild or legal ward. It applies to all children who are under 18 years old. It also applies to children who are at least 18 years old, but only if the child (1) has a disability; (2) is incapable of caring for him or herself due to the disability; (3) has a serious health condition; and (4) needs a parent to care for him because of the serious health condition.
1. The Adult Child Has a Disability
The DOL explained that the first requirement for qualified employees to take an FMLA leave to care for their adult child is the child must have a disability as defined by the Americans with Disabilities Act (ADA). Fortunately, the FMLA adopts the ADA’s relatively new and much broader definition under the Americans with Disabilities Amendment Act (ADAAA). That definition includes any physical or mental condition that substantially impairs a major life activity. Major life activities include the ability to care for yourself, perform manual tasks, see, hear, eat, sleep, walk, stand, lift, bend, speak, breath, learn, read, concentrate, think, communicate, or work. As long as it substantially limits a major life activity, a disability can include a pregnancy-related condition or a condition that is episodic or in remission.
2. The Adult Child is Incapable of Self-Care
The second requirement for the FMLA to cover an adult child is the child must be unable to care for him or herself due to the disability. As the DOL explained, this means the son or daughter needs daily assistance or supervision to care for at least three “activities of daily living” or “instrumental activities of daily living.” Activities of daily living include grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, or using the post office.
3. The Adult Child Has a Serious Health Condition
The third requirement is that the adult son or daughter has a serious health condition. This means the adult child must have an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. As the DOL’s Interpretation recognizes, although the FMLA’s definition of a serious health condition is different from the ADA’s definition of a disability, many conditions are both a serious health condition and a disability.
4. The Parent Needs to Care for the Adult Child Due to the Serious Health Condition
The final requirement for a qualified employee to be entitled to an FMLA leave to care for an adult child is the adult child must need the parent’s care because of the serious health condition. This includes situations in which the parent needs to care for an adult son or daughter who is “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” due to a serious health condition. It also includes situations in which a parent needs to provide psychological comfort or reassurance to an adult child who has a serious health condition while receiving inpatient or home care.
Our employment lawyers represent individuals who have been denied an FMLA leave to care for a child, or whose rights under the FMLA otherwise have been violated. Call us at 201 487-2700 for more information, or to schedule a consultation.