The FMLA requires employers with 50 or more employees to grant up to 12 weeks of leave for, among other things, time off that is needed to care for an adult son or daughter over the age of 18 who is “incapable of self-care because of a disability.” Ever since the Americans with Disabilities Act (“ADA”) was amended back in 2008 to broaden the definition of disability, there has been some question of how the ADA’s definitions affect the FMLA. On January 14, 2013, the U.S. Department of Labor Wage and Hour Division issued an Administrator’s Interpretation clarifying an employee’s entitlement to leave under the FMLA for adult children.
Interpretation and Guidance
Recognizing that employers should broadly construe the definition of what qualifies as a disability, the Administrator in her Interpretation provides the following clarifications and guidance:
- Time of onset doesn’t matter. The timing of the onset of the adult child’s disability does not matter. The disability could arise after the child reaches the age of majority.
- Duration of the impairment doesn’t matter. Reiterating the broad definition of disability under the ADA, the Administrator restates that there is no minimum duration required for an impairment to be a disability. The effects of an impairment lasting or expected to last fewer than six months can still be substantially limiting within the meaning of the ADA.
- Needed assistance in three or more daily living activities. In addition to suffering from a disability, in order for the employee to qualify for FMLA leave, the adult child must 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’” because of his or her disability. These include: grooming and hygiene, bathing, dressing and eating and also include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence using telephones and directories, using a post office, etc.
- “Serious health condition” and “needed to care for” still necessary. The adult son or daughter’s condition necessitating FMLA leave must also still qualify as a serious health condition for which the employee/parent is “needed to care” as defined by the FMLA.
To help in understanding the Interpretation the Administrator provides two illustrative examples:
Shattered Pelvis
The first example entails an adult daughter who shatters her pelvis in a car accident and is substantially limited in walking for six months. The Administrator indicates that if the daughter needs assistance in three or more daily activities such as bathing, dressing and maintaining a residence, she will qualify as a covered adult daughter for purposes of the FMLA because she is incapable of self-care because of a disability.
Diabetes
The second example addresses an adult son who has diabetes but lives independently and does not need assistance with any daily activities. While diabetes generally qualifies as a disability under the ADA, the adult son would not be considered covered under the FMLA because he is not incapable of self-care. However, should the son later become incapable of self-care due to his diabetes, then the parent would be entitled to FMLA protected leave.
Questions and Lessons
The Administrator’s Interpretation still leaves some gray areas that have yet to be answered. For example, is an adult daughter recovering from a C-Section or an adult son recovering from gall bladder surgery considered disabled for purposes of the ADA because of lifting and driving restrictions for a few weeks? Maybe, but the lesson to be learned is that employers will need to closely evaluate all of the circumstances when an employee asks for FMLA leave to care for an adult son or daughter.
If you have any questions, please contact Stephen W. Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
