- First, the child must meet the FMLA definition of a “son or daughter.”
- Second, the child 18 years of age or old must be “incapable of self-care.”
- Third, the incapability for self care must be because of a mental or physical disability at the time FMLA leave is to commence.
- Fourth, the child must have a serious health condition for which he or she needs care.
- Fifth, the employee must be “needed to care for” the adult child.
Let’s look at each of these hurdles separately.
“Son or Daughter”
Under the FMLA, a son or daughter is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. (The FMLA regulations provide separate definitions of “son or daughter” for its military family leave provisions that are not restricted by age.)
Note: 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.
“Incapable of Self-care”
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.
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“Because of a Disability”
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.”
Remember that the ADAAA:
- Broadened the definition of “major life activities” 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.
- 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.
- Stated that an impairment that is episodic or in remission is a disability if it would, when active, substantially limit a major life activity.
“Serious Health Condition”
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.
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 healthcare provider. The FMLA regulations provide objective tests to determine whether a particular condition is a serious health condition under the FMLA.
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“Needed to Care for”
An employee is considered to be “needed to care for” the 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 is unable to transport himself 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.
In tomorrow’s Advisor, practical examples of applying leave rules to children 18 and older, plus an introduction to the all-things-compensation-in-one-place website, Compensation.BLR.com.