WHD Clarifies Definition Of “Son Or Daughter” For Purposes Of FMLA Leave

In Administrator’s Interpretation No. 2013-1, the Department of Labor’s Wage and Hour Division (WHD) has issued additional guidance regarding the definition of “son or daughter” for employees seeking leave under the Family and Medical Leave Act (FMLA) in order to care for adult children aged 18 or older. In order to take leave under the FMLA to care for a child under the age of 18, an employee must only show a need to care for the child due to a serious health condition, but if an employee needs to take care of an adult child aged 18 or older, the child must have a mental or physical disability and be incapable of self-care because of that disability.

The new guidance clarifies that, for purposes of the definition, it is irrelevant if the disability occurs before or after the son or daughter reaches the age of 18. The WHD explains that it has incorporated, for purposes of determining FMLA leave eligibility, the changes of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) that expanded the Americans with Disabilities Act of 1990’s (ADA’s) definition of “disability.”

The WHD also states in the newly-issued guidance that the ADAAA’s expanded definition of disability, along with the WHD’s position that age of onset of disability is irrelevant for purposes of the definition of “son or daughter,” may allow parents of adult children who have been wounded or sustained an injury or illness in military service to take FMLA leave beyond that provided under the special military caregiver leave provision, which already generally allows for up to 26 workweeks of leave in a single 12-month period.

Expanded ADAAA definition. The WHD advises that four requirements must be met for an employee to be entitled to take FMLA leave in order to care for an adult child. The son or daughter must: (1) have a disability as defined by the ADA, which would mean that he or she has an impairment that substantially limits one or more major life activities (or has a record of such impairment or is regarded as having such an impairment); (2) be incapable of self-care due to that disability; (3) have a serious health condition; and (4) be in need of care due to the serious health condition.

The WHD further explains in the guidance that the ADA’s definition of “disability” was expanded when the ADAAA broadened the definition of major life activities to include examples such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, as well as issues regarding the operation of such major bodily functions as the immune, respiratory, reproductive, and endocrine systems.

Under the ADAAA, according to the WHD, for the impairment to “substantially” limit one or more major life activities, it does not have to prevent or severely or significantly restrict performing that major life activity. Finally, the WHD points out that, under the ADAAA, an impairment is a disability even if in remission or if merely episodic, if it would substantially limit a major life activity when active, and there is no minimum duration for an impairment to be a disability. Therefore, cancer that is in remission, or such things as asthma, multiple sclerosis, lupus, or post-traumatic stress disorder could be considered disabilities even during symptom-free periods.

For more information, visit http://www.dol.gov/WHD/opinion/adminIntrprtn/FMLA/2013/FMLAAI2013_1.htm#.UPYLOmfNmSo.

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