By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Grafton, Massachusetts
n January 2013, the U.S. Department of Labor (DOL) issued an Administrator's Interpretation (AI) to clarify the factors an employer must consider when an employee requests leave to care for an adult child. There is very little new information, and the main target of the interpretation may be DOL field staff to ensure they are all on the same page. This AI provides a good opportunity for chiefs to brush up on their Family and Medical Leave Act (FMLA) procedures and paperwork requirements.
Under the FMLA, so long as an employee meets the normal criteria, such as having worked at least 1,250 hours in the last year and so forth, that person is entitled to leave to care for a child with a serious health condition. Under the DOL regulations, a child is defined as a son or daughter who is (1) under the age of 18; or (2) age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence. Before an employee can take FMLA leave to care for his or her adult son or daughter, two factors must be present: the child must
- be incapable of self-care; and
- have a disability as defined by the Americans with Disabilities Act (ADA).
The main thrust of the AI seems to be an effort to clarify the following issues:
- the age of the child at the onset of the disability;
- the impact of the ADA Amendments Act of 2008 (ADAAA) on the interpretation of disability under the FMLA; and
- the availability of FMLA leave for parents to care for an adult child who becomes disabled during military service.
A child younger than 18 years of age is a “son or daughter” under the FMLA without regard to whether or not the child has a disability. An eligible employee requesting FMLA leave to care for a son or daughter younger than 18 years of age must show only a need to care for the child due to a serious health condition. However, in order to meet the FMLA’s definition of a “son or daughter,” an adult child (that is one who is 18 years of age or older) must have a mental or physical disability and be incapable of self-care because of that disability.
Age of the Disabled Child
Whether the child has always been disabled or has suffered a recent injury that renders him or her disabled is not an impediment. Under the AI, the FMLA covers an adult child who suffers from a disability that originated prior to age 18 as well as one that did not commence until adulthood.
Impact of the ADAAA
The U.S. Equal Employment Opportunity Commission’s position, as well as statutory language, has consistently been that the definition of disability under the ADA should “be construed in favor of broad coverage”1 and “should not demand extensive analysis”2 and that the agency would follow this same principle in interpreting the FMLA as well. This will enable more parents to take FMLA leave to care for their adult children with disabilities.
The FMLA regulations define “incapable of self-care because of mental or physical disability” as when an adult son or daughter “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs).”3 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.
It is only when all four requirements are met that an eligible employee is entitled to FMLA-protected leave to care for his or her adult son or daughter.
Traditionally, the DOL, in its FMLA regulations, has adopted the ADA’s definition of disability for the purposes of defining a son or daughter age 18 or older under the FMLA. Not surprisingly, the DOL endorsed the changes to the definition of disability under the ADAAA and warned that these changes clearly will impact an employee’s ability to take FMLA leave to care for an adult child.
The EEOC’s implementing regulations for the ADAAA provide additional guidance on the scope of coverage by observing that some impairments will virtually always qualify as disabilities because, by their very nature, they substantially limit at least one major life activity.4 Impairments that “should easily be concluded” to be substantially limiting 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.5
Incapable of Self-Care
The FMLA requires that the adult child must be “incapable of self-care” because of his or her disability in order to meet the definition of a son or daughter.6 “Activities of daily living include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.”7(emphasis in the original) The list of ADLs and IADLs in the regulations is not exhaustive, and additional activities such as assistance with medication management, should also be considered in determining whether an adult son or daughter is incapable of self-care because of a disability. The determination of whether an adult son or daughter is incapable of self-care due to a disability under the FMLA is a fact-specific determination that must be made based on the individual’s condition at the time of the requested leave. Such a determination must focus on whether the individual currently needs active assistance or supervision in performing three or more ADLs or IADLs. 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 any episodic impairment.
Serious Health Condition
In order for a parent to take FMLA-protected leave to care for his or her adult child, the son or daughter also must be determined to have a “serious health condition,” as defined by the FMLA.8 Under the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. 9 For practical purposes, many impairments will satisfy both the ADAAA’s expanded definition of “disability” and the definition of “serious health condition,” even though the statutory tests are different.
Needed to Care
Finally, in order for a parent to take FMLA leave to care for an adult son or daughter, the parent must be “needed to care” for that son or daughter due to the serious health condition.10 The parent may be needed to care for his or her adult son or daughter if, for example, because of the serious health condition the adult child is “unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor.” 11 The term “needed to care” 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 or home care.12
Impact on Military Leave
The FMLA was amended several years ago to provide enhanced coverage for servicemembers and their families. Under the amendments, up to a 26-week period is available. However, under the AI, if the servicemember’s injury or illness lasts beyond the 12-month period covered by the military caregiver leave entitlement, caregivers for adult children who have been wounded or sustained an injury or illness in military service may be allowed to take more leave than the 26 workweeks provided for under the FMLA. Essentially, the family member (so long as he or she still qualifies for FMLA leave) is entitled to take additional FMLA leave in subsequent FMLA leave years due to the child’s serious health condition, so long as the adult child is unable to care for him or herself due to a disability.
While the FMLA calls on employers to make a designation of FMLA leave in the first few days of an employee’s absence where it appears the individual will be out three or more days, this is not always an easy call. In some cases, it may not even be possible. Especially when an officer is slow in providing details, chiefs may not have enough information to make the FMLA determination because he or she does not have any confirmation that the adult child actually is disabled. Too often, officers are slow in returning forms that describe the nature of their own or a family member’s medical condition. Chiefs should periodically remind all department members that there is a strict requirement that a medical certification be supplied whenever an employee is placed on FLMA leave.
With many military personnel returning home, it will not be surprising to find officers or other department employees asking for some extended FMLA leave to care for wounded veterans. In general, most chiefs are likely to welcome the opportunity to accommodate. However, the same procedure should be followed whenever an employee asks for FMLA leave to care for a disabled adult child. An officer’s 20-year old daughter who has been struck by a car and will spend the next few months in traction before making what the doctors say will be a full recovery still qualifies under the FMLA as a disabled adult child.
Consultation with municipal labor counsel is appropriate whenever a police officer or other department staff members asks for FMLA leave to care for an adult child with an alleged disability. By following a consistent policy of working with counsel and thoroughly evaluating all information, charges of discriminatory enforcement will be avoided. ♦
1 42 U.S.C. § 12102(4).
2 29 C.F.R. § 1630.1(c)(4)
3 29 C.F.R. § 825.122(c)(1).
4 See 29 C.F.R. §§ 1630.2(j)(3)(i)-(iii).
6 29 U.S.C. § 2611(12).
7 29 C.F.R. § 825.122(c)(1).
8 See 29 C.F.R. §§ 825.100(a), 825.112(a)(3).
9 29 C.F.R. § 825.113(a).
10 29 C.F.R. §§ 825.112(a)(3), 825.124.
11 29 C.F.R. § 825.124(a).
Please cite as:
John M. Collins, "Caring for an Adult Child under the Family and Medical Leave Act," Chief’s Counsel, The Police Chief 80 (June 2013): 1617.