Earlier this month, the Department of Labor issued a clarification to the law permitting parents to use leave to care for their children. The Family and Medical Leave Act allows eligible employees to use up to twelve weeks per year to care for themselves, a spouse or child with a serious health condition. When the child is an adult, several rules come into play.
The rules from the Department’s regulations state that
a parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:
- has a disability as defined by the ADA;
- is incapable of self-care due to that disability;
- has a serious health condition; and
is in need of care due to the serious health condition.
The reference to the Americans with Disabilities Act broadens the potential types of disabilities that may cause a parent to care for the adult child, but also may serve to narrow some of the reasons that FMLA is commonly used. For example, a federal court in this district held that having the flu counts as a serious health condition warranting the use of leave under the FMLA. But would such a short-term malady count under the ADA? That is less likely to pass the disability test. The regulations could limit a parent’s ability to stay home with a college age student with a bad case of the flu, unless the child had another disability.
A disability, moreover, might not also qualify as a serious health condition. For example, if the child was visually impaired, the ADA would term that condition a disability. But if the adult child wants the parent to take off time to drive him to the dentist for a routine examination, not a serious health condition, the parent may not be entitled to FMLA leave to provide that “care.”
In addition, the disability must make the adult child incapable of self-care and requiring assistance in three or more activities of daily living, such as eating, bathing, cooking, dressing, and paying bills.
Despite the multiple layers of analysis, the guidance helps clarify that a son or daughter need not be under 18 to have a parent’s caregiving covered under FMLA when needed.