The Family Medical Leave Act (FMLA) presents many challenges for employers because of its complexities. And one area of confusion employers have faced arises in the context of requests for leave to care for adult children.
Generally, the FMLA entitles an eligible employee to take up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition who is under the age of 18. Once an employee’s son or daughter turns 18, a parent is entitled to take FMLA leave only if the adult son or daughter (1) has a mental or physical 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.
One issue employers have struggled with is whether the disability had to occur before the child turned 18 years of age. Recent guidance issued by the Department of Labor’s (DOL) Wage and Hour Division answers this question.
On Jan. 14, the Wage and Hour Division issued a new Administrator’s Interpretation (No. 2013-1) that clarifies the definition of “son or daughter” under the FMLA, and addresses whether an employee is entitled to FMLA leave to care for an adult child who does not become incapable of self-care because of a disability until after the child turns 18. DOL guidance clarifies that whether an adult child’s disability arises before or after the child turns 18 is not relevant in determining a parent’s entitlement to FMLA leave. Therefore, an otherwise eligible employee is entitled to take leave under the FMLA to care for an adult child with a serious health condition who is incapable of self-care because of a disability regardless of when the disability commenced.
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