Parents May Be Eligible for FMLA Leave to Care for Adult Children

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Published Date: 03/03/2014

 

Pat; Rountree

By Pat Rountree

 

Under the Family and Medical Leave Act (FMLA), there is sometimes confusion over the right of parents to take leave to care for an adult child. Under the FMLA, for an employee’s child with a serious health condition, the criteria are different for children under 18 and adult children, who must be incapable of self-care because of a mental or physical disability. For adult children, FMLA eligibility is generally based on meeting the Americans with Disabilities Act (ADA) standards. Since the FMLA came out in 1993 the ADA has changed significantly (due to the ADA Amendments Act of 2008) and the standard for meeting the criteria for FMLA for adult children is a lower threshold. There is also a misconception that adult children must have had the mental or physical disability since they were under age 18. This is not true.

 

Following are some FAQs from the US Department of Labor (DOL) website about this FMLA issue:

 

Must my child have been disabled since birth in order to meet the FMLA definition of a “son or daughter”?

 

No. The age of the child at the onset of a disability is irrelevant in determining whether the child is a “son or daughter” under the FMLA. An eligible 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.

 

What counts as a disability for FMLA leave purposes?

 

The FMLA regulations adopt the Americans with Disabilities Act (ADA) definition of disability as a physical or mental impairment that substantially limits a major life activity, as interpreted by the Equal Employment Opportunity Commission (EEOC), to define “physical or mental disability.” If an adult son or daughter is “incapable of self-care” due to a disability, he or she will meet the FMLA definition of a son or daughter for whom an eligible employee may take leave.

 

What does “incapable of self-care” mean?

 

An individual will be considered “incapable of self-care” for FMLA leave purposes if he or she requires active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs).

 

The FMLA regulations include the following as examples of ADLs:

 

  • Caring appropriately for one’s grooming and hygiene
  • Bathing
  • Dressing
  • Eating

 

The FMLA regulations provide the following examples of IADLs:

 

  • Cooking
  • Cleaning
  • Shopping
  • Taking public transportation
  • Paying bills
  • Maintaining a residence
  • Using telephones and directories
  • Using a post office

 

These lists of ADLs and IADLs are not exclusive and determinations of whether an individual is “incapable of self-care” may include consideration of additional activities such as needing assistance with medication management. Each determination is fact-specific and must be made based on the individual’s condition at the time of the requested leave. The determination must be based on all relevant factors that might impact the ability of the individual to perform ADLs or IADLs without active assistance or supervision, including, for example, the current effect of an impairment that may be episodic in nature.

 

For more information on employees qualifying for FMLA leave for their adult children, see the DOL Fact Sheet at http://j.mp/FM-AC. If you have questions about FMLA, please contact a member of CAI's Advice & Resolution Team at 919‑878‑9222 or 336‑668‑7746.

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