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U.S. Department of Labor Issues Guidance under the FMLA

February 21, 2013

The U.S. Department of Labor (“DOL”) recently issued guidance clarifying the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”) as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical disability. This new guidance specifically addresses three aspects of interpreting this definition: (1) the age of the child at the time of the onset of the disability; (2) the impact of the ADA Amendments Act of 2008 (the “ADAAA”) on the interpretation of a son or daughter with a “disability” under the FMLA; and (3) the availability of family leave under the FMLA for parents to care for an adult child who becomes disabled while performing military service.

Under the FMLA, an eligible employee may take an unpaid, job-protected leave of up to 12 weeks during a 12-month period to care for a son or daughter with a serious health condition. The FMLA allows a parent to take family leave to care for a son or daughter who is 18 years of age or older if such adult son or daughter: (1) has a disability as defined by the Americans with Disabilities Act (“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. Under the FMLA and accompanying regulations, upon satisfaction of all of these factors, an eligible employee is entitled to FMLA-protected family leave to care for his/her adult son or daughter.

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 either: (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 FMLA regulations do not require that there be a biological or legal relationship between the employee and the child: the definition of a “son or daughter” includes a child of a person standing in loco parentis, i.e., a person with day-to-day responsibilities to care for or financially support a child.

As noted above, the new DOL guidance addresses various questions that have arisen in determining when leave may be taken to care for an adult son or daughter.

First, the guidance asserts that the age of the onset of the disability is irrelevant to the determination of whether an individual is considered a “son or daughter” under the FMLA.

Second, the guidance confirms that the broader definition of “disability” set forth in the ADAAA applies in determining whether the son or daughter has a disability. When enacted in 2008, the ADAAA significantly broadened the definition of “disability” under the ADA. As the FMLA refers to the ADA definition of an adult “son or daughter” as interpreted by the Equal Employment Opportunity Commission (“EEOC”), the changes to the definition of “disability” in the ADA brought on by the ADAAA necessarily expand an employee’s ability to take FMLA leave to care for an adult “son or daughter.” As such, disability is construed in favor of broad coverage, and, as made clear by the EEOC, should not demand extensive analysis.

Finally, the guidance addresses the interplay between the new military caregiver leave and instances where an adult son or daughter suffers more permanent injuries during military service. Under the military caregiver provision, an eligible employee/parent of a covered servicemember who sustained a serious injury or illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period. However, the guidance provides that FMLA leave beyond the single 12-month period covered by the military caregiver leave entitlement may be necessary to care for an adult son or daughter with more permanent injuries. The DOL guidance clarifies that the servicemember’s parent may take FMLA leave to care for a son or daughter in subsequent years due to the same adult child’s ongoing serious health condition.

The issues covered by the recently issued guidance reaffirm the need for employers to understand the obligations imposed by the FMLA and to properly analyze employee requests for FMLA leave in conjunction with other laws, such as the ADA.

For more information, please contact:

Catherine P. Wells | Member of the Firm | (973) 530-2051 |

Margaret O’Rourke Wood | Member of the Firm | (973) 530-2063 |

Denise J. Pipersburgh | Associate | (973) 530-2090 |