Earlier this year, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued Administrator’s Interpretation (AI) No. 2013-1, which can be found at www.dol.gov/whd/opinion/adminintrprtn/fmla/2013/fmlaai2013_1.htm. The AI clarifies that the age of onset of a disability is irrelevant when determining whether an employee is entitled to take leave to care for an adult son or daughter with a disability under the Family and Medical Leave Act (FMLA).
Definition of ‘son or daughter’
The FMLA entitles an employee to take a total of 12 workweeks of leave during any 12-month period to care for a son or daughter with a serious health condition. The Act 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.” Thus, the Act entitles an employee to take leave to care for a child under 18 so long as the need to care for the child is due to a serious health condition.
However, for an employee to take leave to care for an adult child, the child must have a mental or physical disability and be incapable of self-care because of the disability. FMLA regulations clarify that for an employee to take leave to care for an adult child, the adult child must be “‘incapable of self-care because of a mental or physical disability’ at the time that FMLA leave is to commence.” The regulations do not state whether it is relevant if the disability occurs before or after the child turns 18.
Child’s age at onset of disability is irrelevant
In AI No. 2013-1, the WHD examined its enforcement history, the FMLA’s legislative history, and the preamble to the 2008 FMLA final rule to conclude that the age of onset of an adult child’s disability is irrelevant in determining whether an individual is considered a “son or daughter” under the Act. With respect to the FMLA’s legislative history, the WHD looked to a report by the U.S. Senate Committee on Labor and Human Resources, which, according to the WHD, reflected two important points:
First, Congress recognized that a disabled child’s need for care from a parent may not end when the child reaches the age of 18.
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Second, 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.
In addition, the WHD stated that it had addressed the two points in previously issued separate opinion letters. And while it acknowledged that its earlier letters on those points may have caused confusion, its enforcement position has been that the age of onset of an adult child’s disability is irrelevant. Moreover, the preamble to the 2008 FMLA final rule states that a child whose disability didn’t commence until adulthood may qualify as a “son or daughter” under the Act.
Bottom line
While neither the FMLA nor its regulations explicitly state that the age of onset is irrelevant in determining whether an employee is entitled to take leave to care for an adult child, AI No. 2013-1 is clear that (1) there is legislative support for that position, (2) the WHD previously has enforced the FMLA in a manner consistent with that legislative support, and (3) the WHD intends to take the same position in future enforcement matters. Thus, employers must be prepared to grant leave to employees who need to care for a qualifying adult child under the Act.
This article was written by attorneys at the firm of Felhaber, Larson, Fenlon and Vogt, P.A. in Minneapolis, Minnesota. They may be contacted by calling 612-339-6321.