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Family Medical Leave Act clarified for parents of disabled adult children

Kathy Neal, a labor and employment attorney with McAfee & Taft, discusses FMLA benefits and the expanded definition of a disabled adult child.
by Paula Burkes Published: April 4, 2013
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Q&A with Kathy Neal

Family Medical Leave Act applies to adult children in some cases

Q: While the Family Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year to care for a child who has a serious health condition, I understand the law had been somewhat unclear as to how that applied to adult children 18 and older. What's changed?

A: The U.S. Department of Labor recently issued a new interpretation that clarifies. A parent is entitled to take FMLA leave if a son or daughter: has a disability as defined by the Americans with Disabilities Act (ADA) as amended by the ADAAA (Americans with Disabilities Act Amended Act); is incapable of self-care due to that disability; has a serious health condition; and is in need of care due to the serious health condition. Because what constitutes a disability is broadly defined, the DOL believes the number of adult children for whom a parent may take FMLA-protected leave will increase.

Q: Does the law apply to adopted children as well as biological children?

A: Yes. You should note, however, that an employee is not entitled to take FMLA leave to care for a daughter-in-law or son-in-law with a serious medical condition.

Q: Does it matter at what age the adult child became disabled?

A: No.

Q: The Labor Department's new interpretation specifically calls into play the ADA when determining whether to grant a leave request. How does that work?

A: While every situation is different and each inquiry is fact-specific, here's a “real life” illustration of the interplay between the FMLA and the ADA and the analysis required to reach an answer. Suppose you have an employee whose 26-year-old daughter is on bed rest for six weeks because of gestational diabetes. Her son-in-law is on active duty overseas, and the employee is the only person available to care for her adult daughter. Is she entitled to take FMLA leave?

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by Paula Burkes
Reporter
A 1981 journalism graduate of Oklahoma State University, Paula Burkes has more than 30 years experience writing and editing award-winning material for newspapers and healthcare, educational and telecommunications institutions in Tulsa, Oklahoma...
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