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?
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?
This is where things get complicated. While pregnancy itself is not a disability under the ADA, pregnancy-related impairments, such as gestational diabetes, may be disabilities if they substantially limit a major life activity. The focus turns to whether the adult child is “incapable of self-care” because of his or her disability. FMLA regulations look to whether the individual requires 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.” These include bathing, dressing, eating, grooming and hygiene, cooking, cleaning, shopping, maintaining a residence and the like. Here, the bed rest resulting from gestational diabetes complications meets the test.
Additionally, the employer must determine whether the adult child has a “serious medical condition,” which the FMLA defines as an illness, injury, impairment or physical or mental condition that requires inpatient care or continuing treatment by a health care provider. For practical purposes, many impairments will satisfy both the ADAAA's expanded definition of disability and the FMLA's definition of a serious health condition. In our example, gestational diabetes likely will meet both definitions.
Q: What determines whether an employee is “needed” to care for an adult child?
A: Generally speaking, if an adult child of an employee is considered disabled and unable to care for his own basic medical, hygienic or nutritional needs, that employee should be considered “needed” to provide care.
PAULA BURKES, BUSINESS WRITER