A parent otherwise eligible for FMLA leave can use that leave to care for a child 18 years of age or older, if that child (1) has a “disability” under the ADA; (2) is incapable of self-care due to that disability; (3) has a “serious health condition” under the FMLA; and (4) needs care due to the serious health condition, according to the U.S. Department of Labor Wage and Hour Division’s Administrator’s Interpretation No. 2013-1 (January 14, 2013). The interpretation also states that whether the adult child’s disability began before or after the age of 18 is irrelevant.
The DOL’s “clarification” discusses the four eligibility criteria. Due to the broadening of the ADA’s definition of “disability,” many more adult children now have a “disability,” and many more parents may be eligible for FMLA leave to care for them. A recurring issue is whether an employee is entitled to “grandparent leave” when the employee’s daughter has a baby. The clarification reiterates that pregnancy is not a disability under the ADA, though “pregnancy-related impairments, such as gestational diabetes” may be.
An adult child is “incapable of self care” if the child requires “active assistance or supervision to provide daily self-care” in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs). ADLs include caring for one’s grooming and hygiene, bathing, dressing and eating. IADLs include “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, [and] using a post office….”
The adult child’s medical condition must be both a “disability” under the ADA and a “serious health condition” under the FMLA. A chronic medical condition will likely meet both definitions. However, since “minor and transitory” impairments are not disabilities under the ADA, FMLA leave would not be available to the parent of an adult child with such an impairment.
The requirement that the parent is “needed to care” for the adult child can often present the most challenging issues. When the parent is needed to assist with ADLs or IADLs, the need for leave is often clear. However, that need is more amorphous and subjective when it is to “provid 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.”
For additional discussion of the DOL’s clarification, click here. The DOL has also issued a series of FAQ’s concerning the use of FMLA leave to care for adult children. Those FAQs may be accessed here.