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FMLA Covers Care of Adult Child With Disability No Matter When Condition Began, WHD Says

Tuesday, January 29, 2013

An eligible employee is entitled to take leave under the Family and Medical Leave Act to care for an adult child who is incapable of self-care because of a disability regardless of the child's age when the disability began, according to Administrator's Interpretation No. 2013-1 issued by the Labor Department's Wage and Hour Division Jan. 14.

“Based on the purpose of the FMLA, the legislative history of the definition of 'son or daughter,' and WHD's enforcement experience, as well as the example in the preamble to the 2008 FMLA Final Rule, it is the Administrator's interpretation that the age of onset of a disability is irrelevant in determining whether an individual is a 'son or daughter' under the FMLA,” the interpretation said.

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.”

To meet the FMLA's definition of a son or daughter, an adult child age 18 or older must have a mental or physical disability that renders him or her incapable of self-care. The FMLA regulations do not explicitly address whether it is relevant if the disability occurs before or after the son or daughter turns 18 years old.

According to the interpretation, congressional reports showed that “Congress recognized that adults who are unable to care for themselves because of a disability have the same compelling need for parental care as children under the age of 18.”

The interpretation also issued guidance relating to FMLA leave used to care for adult children who became disabled during military service. Under the FMLA's military caregiver provision, a parent of a covered servicemember who sustained a serious injury or illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period.

Acknowledging that the servicemember's injury could have an impact that lasts beyond the single 12-month period covered by the military caregiver leave entitlement, the interpretation clarified that the servicemember's parent can take FMLA leave to care for a son or daughter in subsequent years because of the adult child's serious health condition.

By Gayle Cinquegrani  


Text of the Administrator's Interpretation No. 2013-1 is available at http://op.bna.com/dlrcases.nsf/r?Open=gcii-943sz2.

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