Recent Guidance Issued By the U.S. Department of Labor Relative to the Adult Child Provision of the FMLA

The United States Department of Labor (DOL) recently issued guidance regarding the definition of “son or daughter” under the Family Medical Leave Act (FMLA) as it relates to an adult child. The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. 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. Under the FMLA, an eligible employee may take leave to care for a son or daughter who is 18 years old or older if the following four conditions are met: (1) the adult child has a disability as defined by the Americans with Disabilities Act (ADA); (2) he or she is incapable of self-care due to that disability; (3) he or she has a serious health condition; and (4) he or she is in need of care due to a serious health condition. However, there has been a lingering question relative to the timing of the onset of the child’s disability.  Some believed that the disability had to occur prior to the child turning 18 in order for the adult child’s parent to be eligible for FMLA leave. The DOL has now stated that its interpretation of the FMLA is that it is irrelevant whether the onset of the disability occurred before or after the child turned 18.

The DOL previously adopted the ADA’s definition of disability to define “mental or physical disability” for purposes of determining whether caring for a child over 18 is subject to the protections of the FMLA. However, the definition of “disability” broadened with the enactment of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The ADAAA broadened, among other things,  the definition of “major life activities” and expanded the definition of “disability” to include episodic conditions that periodically flare up and substantially limit a major life activity. The DOL has now offered guidance on the impact of the ADAAA on the FMLA and has stated that it believes that the broadened definition of disability as set forth in the ADAAA should apply to this provision of the FLMA. It is expected that this will increase the number of FMLA eligible leaves.

The DOL has also issued guidance concerning FMLA leave used to care for the subsequent serious health condition of an adult child who became disabled during military service. Under the FMLA’s military caregiver provision, a parent of a covered service member who sustained a serious injury or illness is entitled to up to 26 weeks of FMLA leave in a single 12-month period. There was a question, however, whether the parent could take additional FMLA-protected leave in subsequent years to care for a serious health condition of that adult child if the parent had exhausted the military caregiver leave. The DOL has stated that it believes it is appropriate for a servicemember’s parent to take FMLA leave to care for that adult son or daughter in subsequent years because of the adult child’s serious health condition provided all other requirements are met, which includes, among other things, that the parent and its employer are FMLA eligible, the adult child is incapable of self-care due to his/her disability and his/her parents are needed to care for him/her due to his/her serious health condition even if the military caregiver leave had been exhausted in a prior year.

An example of this would be: A parent exhausted the military caregiver leave when his/her adult child returned from service to care for extensive injuries sustained by the adult child during service, which then left the adult child with ongoing injuries that constituted a disability as defined by the ADA and left the adult child unable to care for him/herself.  That adult child then sustains a serious health condition in another FMLA year which requires the parent to again provide care. Under this situation, provided all other requirements are met (i.e. the parent has worked the requisite amount of time, the employer is covered by the FMLA, etc), the parent may take the standard twelve workweeks of protected leave.

The position taken by the DOL generously construes the FMLA in favor of employees; however, we should monitor to see whether the Courts adopt the DOL’s interpretation.

We encourage all employers to tread carefully so as to not run afoul of the many employment statutes governing their interactions with their employees. If you would like assistance navigating these statutes, please contact:

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