CLIENT ALERT / FMLA Coverage Extended!!! Print

In a shocking development, it has now been determined that the FMLA covers care for adult children with a disability, no matter when the condition commenced!

On January 14, 2013, Acting Deputy Administrator Mary Beth Maxwell of the Wage and Hour Division issued an interpretation letter “clarifying” the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical disability.  The interpretation can be found at http://www.dol.gov/WHD/opinion/adminIntrprtn/FMLA/2013/FMLAAI2013_1.htm).  The Acting Deputy Administrator’s interpretation substantially expands coverage under the Federal Family and Medical Leave Act by determining that “the age of the onset of the disability is irrelevant to the determination of whether an individual is considered a ‘son or daughter’ under the FMLA”.

The Family and Medical Leave Act defines “a son or daughter” as a “biological, adopted or foster child, a step-child, 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”.

Title 29 U.S.C. §2611(12); see 29 C.F.R. §825.122(c).

Many employers believed that the term “18 years of age or older and incapable of self-care because of a mental or physical disability” at least implied that the mental and/or physical disability was in place at the time the “son or daughter” reached 18 years of age.  The Acting Deputy Administrator has deemed that the age of the son or daughter at the onset of the disability is “not relevant in determining a parent’s entitlement to FMLA leave”.

In order for a parent to be able to take Family and Medical Leave for such “an adult child” (assuming the parent has been employed for 12 months and has worked 1,250 hours during the previous year), the adult child must satisfy the following criteria:

1. Has a disability as defined by the ADA (Americans’ with Disabilities Act);
2. Is incapable of self-care due to that disability as defined in 29 C.F.R. §825.122(c)(1);
3. Has a serious health condition as defined in 29 C.F.R. §113; and
4. Is in need of care due to the serious health condition.

All four of these requirements must be met.  Unfortunately, this expansion of coverage will require an employer to not only deal with typical eligibility criteria under the Family and Medical Leave Act, but also require the employer to delve into “disability” issues as defined by the ADA and amended by the ADAAA (Americans’ with Disabilities Act Amendments Act of 2008).  With respect to a “disability”, the ADA defines a disability as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.  See 42 U.S.C. §12102(1).  The ADAAA made a number of significant changes in the statute which significantly broadened the scope of disabilities under the ADA and required that the definition of disability “shall be construed in favor of broad coverage”.  42 U.S.C. §12102(4).  The EEOC has interpreted this to make clear that the issue of disability “should not demand extensive analysis”.  29 C.F.R. §1630.1(c)(4).

Perhaps the reality of the expansion of FMLA eligibility due to the Acting Deputy Administrator’s interpretation is best demonstrated by the “examples” used by the Acting Deputy Administrator.

Example 1: An employee's 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major life activities (i.e., walking standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living (ADL) such as bathing, dressing, and maintaining a residence [29 C.F.R. §825.122(c)(1)], she will qualify as an adult "daughter" under the FMLA as she is incapable of self-care because of a disability. The daughter's shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.

Example 2: An employee's 25-year old son has diabetes but lives independently and does not need assistance with any ADLs or IADLs (instrumental activities of daily living).  Although the young man's diabetes qualifies as a disability under the ADA because it substantially limits a major life activity (i.e., endocrine function), he will not be considered an adult "son" for purposes of the FMLA because he is capable of providing daily self-care without assistance or supervision. Therefore, if the son is admitted to a hospital overnight for observation due to a skiing accident that does not render him disabled, his parent will not be entitled to take FMLA leave to care for him because he is over the age of 18 and not incapable of self-care due to a mental or physical disability.

If the son later becomes unable to walk and is also unable to care for his own hygiene, dress himself, and bathe due to complications of his diabetes, he will be considered an adult "son" as he is incapable of self-care due to a disability. The son's diabetes will be both a disability under the ADA and a chronic serious health condition under the FMLA because his condition requires continuing treatment by a doctor (e.g., regular kidney dialysis appointments). If his parent is needed to care for him, his parent may therefore take FMLA-protected leave to do so.

The expansion of the interpretation of “son or daughter” may also affect the military caregiver provision under the Family and Medical Leave Act.  Under the military caregiver provision, a parent of a covered service member who sustained a serious injury or illness is entitled to up to 26 work weeks of FMLA leave in a single 12 month period if all other requirements are met.  The Acting Deputy Administrator’s interpretation will provide such a parent with leave rights beyond the 12 month period covered by the military caregiver leave entitlement to potentially take care of that adult son or daughter “in subsequent years due to the adult child’s serious health condition, as long as other FMLA requirements are met”.  (See example below.)

Example: A father has exhausted his 26 workweeks of military caregiver leave to care for his 20-year old son, a returning servicemember who sustained extensive burn injuries to his arms and torso. In the next FMLA leave year, the father seeks leave from his employer to care for his son as he undergoes and recovers from additional surgeries and skin graft procedures. The father will be entitled to take up to 12 workweeks of FMLA protected leave to care for his son because his son's burn injuries that substantially limit his ability to perform manual tasks constitute a disability under the ADA, the son is incapable of self-care due to a disability (i.e., he needs active assistance or supervision in bathing, dressing, and eating), the son's burn injuries are a serious health condition because they require continuing treatment by a health care provider, and the father is "needed to care" for the son.

The Acting Deputy Administrator cited the legislative history of the FMLA from the US Senate Committee on Labor and Human Resources as supporting her interpretation.

“The term ‘son or daughter’ is further defined in §101(12) to include not only children under 18 years of age, but also a son or daughter who is 18 years old or older if he or she is ‘incapable of self-care because of a mental or physical disability’.  The bill thus recognizes that in special circumstances, where a child has a mental or physical disability, a child’s need for parental care may not end when he or she reaches 18 years of age.  In such circumstances, parents may continue to have an active role in caring for the son or daughter.  An adult son or daughter who has a serious health condition and who is incapable of self-care because of a mental or physical disability presents the same compelling need for parental care as the child under 18 years of age with a serious health condition.” 
See S.REP.NO. 103-3 at 22 (1993).

The statement in the above Committee Report to the effect that “the bill thus recognizes that in special circumstances, where a child has a mental or physical disability, a child’s need for parental care may not end when he or she reaches 18 years of age” (emphasis added) may support a different interpretation than that provided by the Acting Deputy Administrator, and time will tell whether the Acting Deputy Administrator’s interpretation is followed by the Federal Courts.  In the meantime, FMLA has become more complicated insofar as adult parents may take Family and Medical Leave for “adult children” beyond that which was previously contemplated by many.  When one adds reduced leave or intermittent leave into the mix, the matter is complicated even further.  

As always, feel free to contact any of the attorneys

at TMF to discuss this or any other legal matter.

 

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