Question: Is an employee eligible for FMLA to care for a 20 year-old daughter that lives with her and was in a bad accident?
Answer: Thank you for your inquiry. If the adult child’s injuries related to her accident are severe enough, the employee may be able to take Family and Medical Leave Act (FMLA) leave to care for her daughter.
Under the FMLA, an eligible employee is entitled to take up to 12 workweeks of unpaid leave during any 12-month period to care for a spouse, son or daughter, or parent who has a serious health condition. See 29 U.S.C. §2612(a)(1).
“Son or daughter” is defined as a biological, adopted, or foster child, stepchild, legal ward, or a child of a person standing in loco parentis (in place of the parent). For coverage to apply, a child must be either under age 18, or, if older than 18, unable to care for herself because of a mental or physical disability.
Although the FMLA does not define “disability” for purposes of adult children, the FMLA regulations adopt the Americans with Disabilities Act’s (ADA) definition of disability. See 29 C.F.R. §825.122(c)(2). Individuals older than 18 will be considered incapable of self-care if they require active assistance or supervision to provide daily self-care with three or more “activities of daily living” (such as grooming, hygiene, dressing, and eating) or “instrumental activities of daily living” (including cooking, shopping, taking public transportation, and paying bills). See 29 C.F.R. §825.122(c)(1).
Accordingly, the employee’s adult child must be unable to care for herself because of a mental or physical disability, as defined above, in order for the employee to take the FMLA leave. You may require a health care provider’s medical certification of the child’s serious health condition and a statement that your employee is needed to care for the child. The regulations say this certification of “need” encompasses both physical and psychological care.
So, in addition to assistance with activities of daily living and instrumental activities of daily living, the term “need” also includes “psychological comfort and reassurance” beneficial to a child receiving inpatient or home care. See 29 C.F.R. §825.124(a). However, neither the FMLA statute nor the regulations specifically define psychological comfort and reassurance.
The Department of Labor (DOL) provides a helpful fact sheet, DOL Fact Sheet #28K, which addresses adult children and use of FMLA leave, online at https://www.dol.gov/whd/regs/compliance/whdfs28k.htm.
Even if you determine that the employee is not eligible for FMLA leave for this situation, you may want to look at your other leave policies and see if you can accommodate the request. The employee likely is having a difficult time now and would appreciate any assistance you can provide.