This article series highlights the requirements for determining Family and Medical Leave Act (FMLA) eligibility. The last installment focused on caring for adult children. Employees who are eligible for FMLA leave who want to take leave to care for a child 18 years of age or older must satisfy five requirements to qualify for FMLA leave. Here we’ll look at each of these requirements separately.
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1) “Son or daughter” requirement
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 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. (The FMLA regulations provide separate definitions of “son or daughter” for its military family leave provisions that are not restricted by age.)
2) “Incapable of self-care” requirement
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 ADLs: caring appropriately for one’s grooming and hygiene, bathing, dressing, and eating. The FMLA regulations provide the following examples of IADLs: cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones (and directories), and 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.