In a progressive step in the right direction, the Department of Labor (DOL) recently expanded the definition of “son or daughter” to now allow an eligible employee to take medical leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is unable to care for themselves because of disability related limitations, not considering the age of the child when they were inflicted with the disability.
If you’re not familiar with FMLA, it is a federal law that allows an employee to take up to 12 weeks of unpaid leave due to illness or to care for a sick family member, including a son or daughter. The FMLA ensures that you are able to take extended leaves of absence from work to due to illness or to care for a sick family member. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild ,a legal ward, or a child of a person standing in loco parentis, who is—(A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” The DOL’s regulations hold that the FMLA does not require that a biological or legal relationship exist between the employee and the child. Therefore, the regulations interpret “son or daughter” under the FMLA to include a child of a person standing in loco parentis – those with day-to-day responsibilities to care for or financially support a child.
Initially, “son or daughter” had been defined by a child who was under the age of 18, regardless of whether or not they have a disability. A qualified employee requesting FMLA leave to care for a son or daughter under 18 years of age is now only required to show they need to care for the child due to a serious health condition, not necessarily a disability.
On January 14, 2013, the DOL issued Administrator’s Interpretation (AI) No 2013-1, expounding on the definition of “son or daughter.” In order to meet the FMLA’s definition of a “son or daughter,” an adult child (i.e., an adult child 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.
In defining mental or physical disability, the FMLA regulations implement the Americans with Disabilities Act’s (ADA) definition of “disability” – a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC). The AI also incorporates the Americans with Disabilities Act Amendments Act (ADAAA)’s expansions to the definition of disability, noting that the clear language of the ADAAA provides that the definition of disability is to be “construed in favor of broad coverage.”
The AI also now requires that the adult child must be incapable of self-care because of his or her disability in order to meet the definition of son or daughter. The FMLA regulations define “incapable of self-care because of mental or physical disability” as 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).” Assuming the other requirements of the FMLA are met, a parent will be 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
It is only when all four requirements are met that an eligible employee is entitled to FMLA protected leave to care for his or her adult son or daughter.
Lastly, the AI makes clear that the age of the son or daughter at the start of a disability is irrelevant in determining a parent’s right 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 is a great step in enlarging the protections of FMLA, especially in an area that is typically forgotten and set aside. Now, caregivers with adult children who are incapable of caring for them can get the much needed assistance from a parent, without the parent fearing retribution for taking time off of from work.
As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Offices of Maya Risman, P.C. at (212) 233-6400 or contact us online.