Do I Have to Provide FMLA Leave for an Employee to Care for an Adult Child?

04 February 2013 Labor & Employment Law Perspectives Blog

The Family and Medical Leave Act (FMLA) allows eligible employees of covered employers to take up to 12 weeks of job-protected, unpaid leave during a 12-month period to care for a child with a “serious health condition.” However, an employee is generally not permitted to take FMLA leave to care for a son or daughter who is 18 years of age or older. The U.S. Department of Labor has recently clarified an exception to this general rule, stating that an employee may take FMLA leave to care for a son or daughter of any age who is incapable of self-care because of a physical or mental disability at the time that FMLA leave begins.

There are two key questions involved in whether an employee is entitled to leave to care for an adult child: (1) whether the employee’s adult son or daughter has a physical or mental disability that (2) causes the adult child to be incapable of self-care. The FMLA uses the EEOC’s regulations under the Americans With Disabilities Act (ADA), which is very inclusive and provides broad coverage of conditions, to define disability and determine if a child’s condition is a disability. The Department of Labor’s recent fact sheet now clarifies that the age of the adult child at the onset of the disability is irrelevant, allowing employees to use FMLA leave to care for any child of the employee who is disabled and incapable of self-care.

The Department of Labor provides the example of an eligible employee’s 19-year-old adult daughter diagnosed with cancer. The daughter’s cancer would meet the ADA’s definition of disability and if the effects of cancer or chemotherapy left her unable to perform activities of daily living, the employee would be entitled to FMLA-protected leave to provide care for the daughter. However, if the daughter’s cancer is in remission and she is able to care for herself, the employee would not qualify for FMLA-protected leave to provide care for the daughter.

Employers often face significant challenges in determining how an employee’s disability and leave issues are interrelated, determinations that can be further complicated when the disability or health condition of an employee’s family member, such as an adult child, is involved. This recent clarification from the Department of Labor potentially adds new layers of challenge, particularly because determinations regarding disability and ability to self-care are fact-specific and should be determined based on the relevant individual’s condition at the time of an employee’s leave. Remember that under federal law, in order to determine an employee’s entitlement to FMLA leave, employers may require that an employee provide notice of the need for leave and medical certification of a serious health condition, including that of an adult child. This information will be critical to properly evaluate if the employee’s son or daughter has a disability and is incapable of self care, entitling the employee to FMLA leave.

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