DOL guidance may increase FMLA requests for care of adult children

As a result of a U.S. Department of Labor administrator’s interpretation (No. 2013-1) of the Family and Medical Leave Act (FMLA) on Jan. 14, employers can expect more requests from employees seeking protection under the act to care for adult children unable to care for themselves. As employees become more familiar with this right, expanded by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), employers still should remember what isn’t a disability, such as a pregnancy without complications.

FMLA leave is available to care for a son or daughter with a serious health condition who is under 18 or at least 18 and incapable of self-care because of a disability. The administrator’s letter explains the four-part test for determining if an eligible employee of a covered employer may take FMLA leave to care for an adult child with a disability.

ADAAA Disability

First, the adult child must have an ADA disability as defined by the ADAAA, the Labor Department noted.

“The ADAAA made a number of significant changes that broadened the scope of this definition under the ADA,” the administrator’s interpretation states.

For example, an impairment that is episodic or in remission is a disability if, when active, the impairment would substantially limit a major life activity. “Thus, cancer in remission or a condition with episodic periods of illness, such as multiple sclerosis, asthma, epilepsy, diabetes, lupus or post-traumatic stress disorder, would still be considered a disability even when the symptoms of the condition are not currently manifesting,” the department said. “There is also no minimum duration required for an impairment to be a disability. … The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of the ADA.”

In addition, the Equal Employment Opportunity Commission (EEOC) has interpreted the ADAAA broadly. The Labor Department noted that under EEOC guidance, “Some impairments will virtually always qualify as disabilities because, by their very nature, they substantially limit at least one major life activity.” Impairments that “should easily be concluded” to be ADA disabilities include deafness, blindness, intellectual disability, missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, multiple sclerosis, human immunodeficiency virus infection, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.

But the definition of ADA disability wasn’t turned completely upside down by the ADAAA. Pregnancy still isn’t a disability, so parents of adults who are pregnant generally don’t have a right to FMLA leave to care for them.

There are exceptions even to this rule, though. Complications from pregnancy may be covered disabilities. As the administrator’s interpretation points out, “While pregnancy itself is not a disability under the ADA, pregnancy-related impairments, such as gestational diabetes, may be disabilities within the meaning of the ADA if they substantially limit a major life activity.”

Incapable of self-care

Second, for an employee to qualify for FMLA leave to care for an adult child with a disability, the adult child must be incapable of self-care because of his or her disability, the Labor Department stated.

FMLA regulations define “incapable of self-care” as meaning the son or daughter “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,’ ” it added.

The department explained that activities of daily living include caring for one’s grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, and using a post office. These lists are illustrative, not exhaustive.

Serious health condition

Third, the adult child must have a serious health condition under the FMLA. This is the easiest of the four prongs to meet, since, as the Labor Department stated, “For practical purposes, many impairments will satisfy both the ADAAA’s expanded definition of ‘disability’ and the definition of ‘serious health condition,’ even though the statutory tests are different.”

Despite the ADA’s expanded definition of “disability” under the ADAAA and the FMLA’s use of the word “serious,” it is easier to meet the FMLA’s threshold for a condition to be a covered “serious health condition” than it is to show an ADA disability.

As the department noted in frequently asked questions on FMLA leave to care for an adult child: “The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. The FMLA regulations provide objective tests to determine whether a particular condition is a serious health condition under the FMLA. Common serious health conditions include conditions requiring an overnight stay in a hospital or other medical care facility; conditions that cause the employee or the employee’s spouse, son or daughter, or parent to be incapacitated for more than three consecutive calendar days and that require ongoing medical treatments (e.g., two in-person visits to a health care provider, or one visit with follow-up care such as prescription medication); chronic conditions that cause occasional periods of incapacity and that require treatment by a health care provider at least twice a year; and incapacity due to pregnancy.”

Incapacity due to pregnancy, for example, is not covered by the ADA but is covered by the FMLA.

Needed to care

Finally, the parent must be needed to care for the adult son or daughter because of the serious health condition. The parent may be needed if the adult child cannot care for his or her own basic medical, hygienic or nutritional needs or safety, or is unable to transport himself or herself to the doctor. Labor noted that “needed to care” also includes “psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care.”

Clarifications

To clear up confusion among employers, the Labor Department emphasized in the administrator’s interpretation that “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.”

It also stated that parents of adult children who have been wounded in military service may take FMLA leave beyond that provided under the law’s special military-caregiver leave provision. That provision allows a parent (in addition to a spouse, son, daughter or next of kin) of a covered service member who sustained a serious injury or illness to take up to 26 workweeks of FMLA leave in a single 12-month period for each injury or illness.

The administrator’s interpretation does not apply to an employee’s entitlement to take FMLA military family leave for a son or daughter (in addition to a spouse or parent) for qualifying exigencies arising out of his or her active duty. “Unlike the FMLA’s general definition of ‘son or daughter,’ the definitions applicable to the FMLA’s military family leave provisions are not restricted by age,” the department explained.

The administrator’s interpretation concluded, “The ADAAA’s expanded definition of the term ‘disability’ will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities provided that such adult children are incapable of self-care due to their disability and their parents are needed to care for them due to their serious health condition.”

Allen Smith, J.D., is manager, workplace law content, for SHRM.

©2013 SHRM. All rights reserved.

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