The FMLA Turns 20, and Expands Once Again

Post by Anna M. Pepelnjak

On February 5, 2013, the FMLA celebrated its 20th anniversary. The law’s coverage has expanded incrementally over the years, most recently through a Wage and Hour Division Administrator’s Interpretation regarding availability of leave to care for adult children. See: DOL Fact Sheet #28K.

The FMLA defines a child to include both children under 18 and those who are “18 years of age or older and incapable of self-care because of a mental or physical disability.” Under FMLA regulations, the term “incapable of self-care” means that the adult child needs daily assistance or supervision to provide daily self-care in three or more of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs). The regulations further define ADLs to include caring for one’s grooming and hygiene, bathing, dressing, and eating. IADLs include cooking, cleaning, shopping, taking public transportation, and paying bills.

In other words, a qualifying adult child must:

  1. Have a disability as defined by the ADAAA;
  2. Be incapable of self-care due to that disability;
  3. Have a “serious health condition”, as defined by the FMLA, and;
  4. Be in need of care due to the serious health condition.

The recent Interpretation clarifies what had been a gap in coverage by stating that the date of onset of the child’s disability is irrelevant, so long as the other conditions are met.

The DOL offers the following example, regarding a daughter with cancer:

If an employee’s daughter suffers from the effects of cancer or chemotherapy that render her unable to perform activities of daily living (such as bathing, eating, and dressing), she will qualify as a ‘daughter’ under the FMLA because she is incapable of self-care due to a disability. Her cancer would meet the FMLA’s definition of a serious health condition if it required her to receive inpatient care or continuing treatment by a doctor. The parent could demonstrate that the daughter is in need of care if, for instance, she needed to be driven to her radiation treatments. In these circumstances, the parent would be entitled to take FMLA-protected leave to provide care for the daughter.

Alternatively, if the daughter has cancer that is in remission and she is not incapable of self-care, she still will meet the ADA’s definition of disability but will not meet the FMLA’s definition of “son or daughter.” In this instance, the parent would not qualify for FMLA-protected leave to care for the daughter even if she had a serious health condition.

Due to the complicated interplay between ADAAA and FMLA definitions, employers should carefully and promptly examine employee requests for FMLA leave to care for adult children and seek legal advice when needed.


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