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Wage and Hour Division (WHD)

Questions and Answers concerning the use of FMLA leave to care for a son or daughter age 18 or older

 

1. How does the FMLA define a “son or daughter?”

A “son or daughter” is defined by the FMLA regulations as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or is 18 years of age or older and “incapable of self-care because of a mental or physical disability” at the time FMLA leave is to commence.

The FMLA regulations provide separate definitions of “son or daughter” for its military family leave provisions that are not restricted by age.

Wage and Hour Administrator’s Interpretation No. 2010-3 (June 22, 2010) provides additional information regarding the definition of a son or daughter as it applies to an employee standing in loco parentis.

2. Must my child have been disabled since birth in order to meet the FMLA definition of a “son or daughter”?

No. The age of the child at the onset of a disability is irrelevant in determining whether the child is a “son or daughter” under the FMLA. An eligible employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced.

3. What counts as a disability for FMLA leave purposes?

The FMLA regulations adopt the Americans with Disabilities Act (ADA) definition of disability as a physical or mental impairment that substantially limits a major life activity, as interpreted by the Equal Employment Opportunity Commission (EEOC), to define “physical or mental disability.”

If an adult son or daughter is “incapable of self-care” due to a disability, he or she will meet the FMLA definition of a son or daughter for whom an eligible employee may take leave.

4. What does “incapable of self-care” mean?

An individual will be considered “incapable of self-care” for FMLA leave purposes if he or she requires active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs).

The FMLA regulations include the following as examples of “activities of daily living”:

  • Caring appropriately for one’s grooming and hygiene
  • Bathing
  • Dressing
  • Eating

The FMLA regulations provide the following examples of “instrumental activities of daily living”:

  • Cooking
  • Cleaning
  • Shopping
  • Taking public transportation
  • Paying bills
  • Maintaining a residence
  • Using telephones and directories
  • Using a post office

These lists of ADLs and IADLs are not exclusive and determinations of whether an individual is “incapable of self-care” may include consideration of additional activities such as needing assistance with medication management. Each determination is fact-specific and must be made based on the individual’s condition at the time of the requested leave. The determination must be based on all relevant factors that might impact the ability of the individual to perform ADLs or IADLs without active assistance or supervision, including, for example, the current effect of an impairment that may be episodic in nature.

5. What is the ADAAA and how does it affect my ability to take FMLA leave?

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was signed into law on September 25, 2008 and significantly broadened the scope of the term “disability” under the ADA. Because the FMLA’s definition of an adult “son or daughter” relies upon the ADA’s definition of disability as a mental or physical impairment that substantially limits one or more major life activities, the changes to the definitions of these terms in the ADAAA and its implementing regulations may affect who is determined to be a “son or daughter” 18 years of age or older under the FMLA.

In order for a parent, who is an eligible employee, to take FMLA leave to care for a son or daughter 18 years of age or older, the adult child must be incapable of self-care due to a mental or physical disability, i.e., an impairment that “substantially limits” one or more of the individual’s “major life activities.” The ADAAA broadened the definition of “major life activities” under the ADA to include, among other things, the “operation of a major bodily function” such as those of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems.

The ADAAA also clarified that the use of mitigating measures to ameliorate the effects of an impairment, other than ordinary eyeglasses or contact lenses, may not be considered in determining whether the individual is substantially limited in a major life activity. It further stated that an impairment that is episodic or in remission is a disability if it would, when active, substantially limit a major life activity.

The ADAAA’s expanded definition of the term “disability” will enable more eligible employees to take FMLA-protected leave to care for their adult sons and daughters with disabilities provided that such adult children are incapable of self-care due to their disability and their parents are needed to care for them due to their serious health condition.

6. How is a disability different from a serious health condition?

The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. The FMLA regulations provide objective tests to determine whether a particular condition is a serious health condition under the FMLA. Common serious health conditions include conditions requiring an overnight stay in a hospital or other medical care facility; conditions that cause the employee or the employee’s spouse, son or daughter, or parent to be incapacitated for more than three consecutive calendar days and that require ongoing medical treatments (e.g., two in-person visits to a health care provider, or one visit with follow-up care such as prescription medication); chronic conditions that cause occasional periods of incapacity and that require treatment by a health care provider at least twice a year; and incapacity due to pregnancy. Providing needed care to a son or daughter with a serious health condition is a qualifying reason for FMLA leave.

The FMLA regulations define a disability as a physical or mental impairment that substantially limits one or more of the major life activities of an individual. The FMLA regulations adopt the definitions of these terms used in the ADA as interpreted by the EEOC. The definition of disability is used for FMLA purposes as part of the determination of whether an individual who is 18 years of age or older is a “son or daughter.”

In order to take FMLA leave to care for a son or daughter who is 18 years of age or older, the adult child must have a disability and be incapable of self-care due to that disability. The son or daughter must also have a serious health condition for which he or she needs care. For practical purposes, many impairments will satisfy the definitions of both “disability” and “serious health condition,” even though the statutory tests for each are different.

7. What does it mean that I must be “needed to care for” my adult son or daughter? What kind of care must I be providing?

You will be considered to be “needed to care for” your son or daughter if, for example, he or she is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or unable to transport him or herself to the doctor, because of a serious health condition. The term also includes providing psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient care or home care.

8. Are there any conditions that are always disabilities under the ADA?

The EEOC’s regulations implementing the ADAAA provide that certain impairments will virtually always qualify as disabilities because, by their very nature, they substantially limit at least one major life activity. These impairments include deafness, blindness, intellectual disability, missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, multiple sclerosis, Human Immunodeficiency Virus (“HIV”) infection, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

An individual who has any of these impairments would qualify as an adult “son or daughter” under the FMLA if he or she is also incapable of self-care because of the disability.

9. My 20-year-old daughter has been put on bed rest because of her high risk pregnancy. I am the only one available to care for her. Can I take FMLA leave for this reason?

Maybe. In order to take FMLA leave to care for your adult daughter, she must be incapable of self-care due to a disability and you must be needed to care for her because of a serious health condition. While any incapacity due to pregnancy will be a serious health condition for FMLA purposes, pregnancy itself is not a disability. However, pregnancy-related impairments may be considered disabilities if they substantially limit a major life activity.

If your daughter has a pregnancy-related impairment, such as pregnancy-related sciatica, that substantially limits one or more of her major life activities, such as walking or lifting, then she has a disability. If she is incapable of self-care due to that disability (e.g., she needs active assistance in cooking, cleaning, and shopping), then she qualifies as an adult daughter under the FMLA. In such circumstances, assuming you are an eligible employee, you will be able to take FMLA-protected leave if you are needed to care for her.

10. As an employer will I need to change my policies or the FMLA notice I provide to my employees as a result of the Administrator’s Interpretation clarifying the definition of an adult son or daughter?

The most recent version of the FMLA Poster is available from our website at www.dol.gov/whd. It contains all the information you are required to post. You may wish to review your policies concerning granting FMLA leave to employees with children 18 years of age or older to determine if they are in line with this interpretation.

11. My 23-year-old son with Down syndrome lives with me and goes to a community resource program during the day. When he is ill, he must stay home and cannot be left alone. I am an FMLA-eligible employee. May I take leave if he is ill and cannot go to his daytime program?

Yes, if your son requires active assistance or supervision to provide self-care in at least three ADLs or IADLs because of his disability and his illness meets the definition of a “serious health condition” under the FMLA.

12. May I take leave for my adult child if my spouse or someone else is also taking leave to care for the child?

Yes. The eligible employee need not be the only one available to care for the family member in order to be entitled to take FMLA leave. Spouses employed by the same covered employer may be limited to a combined total of 12 weeks of leave during a 12-month period for leave taken for certain specified reasons. However, this limitation does not apply to leave to care for a child (including a child 18 years of age or older who is incapable of self-care because of a mental or physical disability) with a serious health condition.

13. My 40-year old daughter has cerebral palsy. Can I assume her condition meets the definition of a serious health condition and I can take FMLA leave to care for her?

The determination of whether an impairment qualifies as a serious health condition must be evaluated on a case-by-case basis, and can vary between individuals with the same disability. While cerebral palsy is recognized to be a disability, your daughter must also be incapable of self-care because of her disability and her need for care must result from a serious health condition as defined in the FMLA.

14. My adult daughter has a disability, epilepsy, which is controlled by medication. Can I take FMLA leave to care for her if she is admitted to a hospital overnight for observation due to a car accident?

No. Although your daughter has a disability, she is not currently incapable of self-care because of that disability. Her ability to care for herself (i.e., her ability to independently perform activities of daily living) means she does not qualify as a “daughter” for leave purposes under the FMLA. Even if your daughter suffers from a brief period of incapacity and receives inpatient care for a night due to the car accident and therefore has a serious health condition under the FMLA, you would not be entitled to FMLA leave to care for her as she does not meet the FMLA definition of a “daughter.”

15. Where can I get help if my employer refuses to allow me to take FMLA leave to care for my adult child who is disabled and incapable of self-care?

Information about the FMLA, including the Administrator’s Interpretation about leave to care for an adult child incapable of self-care because of a disability, may be found on the Wage and Hour Division web site, www.dol.gov/whd/fmla. If you have questions or wish to file a complaint, you may contact the nearest District Office of the Wage and Hour Division.