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Department of Labor Clarified the Terms "Son" or "Daughter" Under the FMLA

Posted on Fri, Mar 01, 2013 @ 01:16 PM

by Jack B. HarrisonJack B. Harrison

On January 14, 2013, the Department of Labor (DOL) issued a clarification of the definition of "son or daughter" under the Family and Medical Leave Act (FMLA).  Administrator's Interpretation (AI) No 2013-1.  The clarification makes clear the DOL position regarding whether an eligible employee may take FMLA leave to care for an adult child who is incapable of self-care because of a disability.  The clarification made it clear that such leave may be taken without regard to how old the child was when the disability commenced.  The clarification also applies to the FMLA's military caregiver provision.

Under the FMLA's definition of a "son or daughter," an adult child (i.e., one who is 18 years of age or older) must have a mental or physical disability and be incapable of self-care because of that disability.  The regulations issued by the DOL incorporate the Americans with Disabilities Act's (ADA) definition of "disability," namely a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC).  However, even where the adult child is disabled under the broad definitions of the ADA, the child must be incapable of self-care because of his or her disability in order to meet the definition of son or daughter under the FMLA.  The regulations define "incapable of self-care because of mental or physical disability" as being when an adult son or daughter "requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living' (ADLs) or ‘instrumental activities of daily living' (IADLs)."  Where the other requirements of the FMLA are met, a parent is entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter (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; and (4) is in need of care due to the serious health condition.  Only when all four of these requirements are met is an eligible employee entitled to FMLA-protected leave to care for his or her adult son or daughter.

The DOL further clarified that the age of the son or daughter at the onset of a disability is not relevant in determining a parent's entitlement to FMLA leave.  "An employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced."

This clarification by the DOL impacts the military caregiver provision of the FMLA.  Under that provision, a parent of a covered service member who suffered a serious injury or illness is entitled to up to 26 work weeks of FMLA leave in a single 12-month period if all other requirements are met.  In the clarification, the DOL acknowledges that the service member's injury may last beyond the single 12-month period covered by the military caregiver leave entitlement.  The expanded definition of a disability under the ADA, as well as the clarification that when an adult son or daughter's disability commences is irrelevant in determining whether he or she qualifies as a "son or daughter" under the FMLA, may allow parents of adult children who have been wounded or sustained an injury or illness in military service to take FMLA leave beyond that provided under the special military caregiver leave provision of the statute, as long as all other FMLA requirements are met.

As a result of this clarification, with the DOL incorporating the broad ADA definition of "disability," employers will likely see an increase in the number of adult children who can be classified as disabled and for whom parents may take FMLA-protected leave to provide care if the adult child is incapable of self-care at the time of the FMLA.  Prudent employers should make sure that personnel who manage and process leave requests are trained on the new interpretation. Employers should also reexamine the method they utilize to compute FMLA leave to determine if, in light of the recent expansion, a different computing method might benefit the company.

Tags: Department of Labor, Americans With Disabilities, FMLA