Even though the Family Medical Leave Act officially turned 20 years old last month there continue to be issues requiring clarification from the courts and the Department of Labor. Most recently, the DoL issued some administrative guidance on FMLA leave for adult children. The FMLA provides time off to care for children who are either under 18 years of age or who are older than 18 and are “incapable of self-care because of a mental or physical disability.” Unfortunately, this definition left a number of open questions, such as, is the FMLA definition of disability the same as the Americans with Disabilities Act definition? does it matter when the disability began? and what is the intersection of “serious health condition” under the FMLA and “disability” under the ADA?
Before moving on, I just want to take a moment, yet again, to advertise the FMLA video I put together. If you are not familiar with the basic requirements, check out that video and then come back for more information on this complicated topic.
For all the nitty-gritty of the DoL guidance, hit the jump…
The Department of Labor clarified that a parent could take leave for their adult child if four conditions are met:
- the child has a disability as defined by the ADA,
- the child is incapable of self-care due to their disability,
- the child has a serious health condition, and
- the child is in need of care due to the serious health condition.
As should be clear now, the child must be suffering both from a disability, under the ADA, and a serious health condition, under the FMLA. While many disabilities will automatically qualify as serious health conditions, it will be important in the future to be clear that the child have “an impairment that substantially limits one or more major life activities” and “an injury, illness, impairment, or condition that requires inpatient care or continuing treatment.”
Additionally, the definition of an individual who is “incapable of self-care due to their disability” requires that the individual need assistance or supervision in “three or more activities of daily living.” The importance of this requirement is that the individual will only qualify as a “son or daughter” for FMLA leave if their disability causes them to be incapable of self-care. So if an adult child is living independently with a disability and then catches the flu or has some other serious health condition unrelated to their disability, the parent won’t be able to take FMLA leave to care for that child.
The final clarification I will address is to the date of the origination of the child’s disability. The DoL guidance makes it clear that it does not matter what age the child is when the disability begins in determining FMLA eligibility. Therefore, a previously healthy 37 year old child who has an accident that creates a disability will be covered the same as a 37 year old who has had a congenital disability all their life. As long as they fulfill all of the requirements their parent can utilize FMLA leave.
These FMLA issues can be extremely complex and talking to an employment attorney can be the best way to guarantee you get the answers you need. As always, Missouri NEA members should contact their UniServ director who can either answer your questions or pass you along to an attorney who can.