The acting deputy administrator of the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issued Administrator’s Interpretation (AI) No. 2013-1 on January 14 to explain the WHD’s position on who is considered a son or daughter under Section 101(12) of the Family and Medical Leave Act (FMLA). The administrator concluded that parents who are eligible employees of covered employers are entitled to take FMLA leave to care for an adult child who is disabled or has a serious health condition without regard to the child’s age when the disability began. 
FMLA refresher
Under the FMLA, an eligible employee of a covered employer is entitled to take up to 12 workweeks of unpaid job-protected leave during a 12-month period for specified family and medical reasons. One of the specified reasons is to care for a son or daughter who is disabled or has a serious health condition.
The FMLA military caregiver provision entitles an eligible employee who is a spouse, son, daughter, parent, or next of kin of a covered servicemember with a serious injury or illness incurred or aggravated in the line of duty to take up to 26 weeks of leave in a single 12-month period to care for the servicemember.
Who is a son or daughter?
The questions that prompted the AI are:
- What rights under the FMLA does an employee have if the ill or disabled son or daughter is older than 18?
- Does it matter at what age the son or daughter became disabled?
The FMLA 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.” This article focuses on the eligible employee with a son or daughter who fits into category B.
Requirements and definitions
For an employee to be entitled to take FMLA leave to care for an adult son or daughter, the child must meet all four of the following conditions:
- Have a disability as defined by the Americans with Disabilities Act (ADA);
- Be incapable of self-care because of the disability;
- Have a serious health condition; and
- Be in need of care because of the serious health condition.
The FMLA regulations define “incapable of self-care because of mental or physical disability” as requiring “active assistance or supervision to provide daily self-care in three or more of the activities of daily living or instrumental activities of daily living.” That includes activities such as grooming, bathing, cooking, eating, and taking public transportation. The FMLA regulations adopted the ADA’s definition of disability to define mental or physical disability as a “physical or mental impairment that substantially limits one or more major life activities of an individual.” That includes activities such as caring for oneself, seeing, hearing, and the operation of a major bodily function.
Is age relevant?
The FMLA regulations do not address whether it is relevant when the adult son or daughter becomes disabled. The WHD administrator looked at the legislative history and purpose of the FMLA and the preamble to the 2008 FMLA final rule and concluded that the age of the onset of a disability is irrelevant. That includes employees covered by the military caregiver provision who request regular FMLA leave to care for the servicemember in subsequent years.
In the words of the administrator, “An 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.”
Bottom line
If one of your eligible employees requests FMLA leave to care for a disabled adult son or daughter, remember that the age at which the child’s disability began is irrelevant. You should evaluate the request and decide to grant or deny it based on careful consideration of relevant criteria.
Edward Sisson is an associate with Sulloway & Hollis in Concord, New Hampshire. He may be contacted at esisson@sulloway.com.