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Adult Children and the FMLA: New DOL Guidance
01/22/2013

The Department of Labor issued a new interpretation letter last week addressing the issue of adult children under the FMLA.

As most of you are aware, employees are not generally able to seek FMLA to care for a child over the age of 18. For an employee to be able to take leave to care for an adult child with a serious health condition, the adult child must be incapable of self-care because of a mental or physical disability. The hard part for employers is deciding whether the adult child actually clears that threshold. 

In its interpretation letter, the DOL notes that an employee is eligible for FMLA leave to care for an adult child if the adult child has a disability as defined by the ADA, is incapable of self-care due to the disability, has a serious health condition, AND is in need of care due to the serious health condition. The important point for employers to take away is the adult child needs to trigger all four of those elements. 

The interpretation letter contains a couple of examples to help employers understand how these adult-child rules will be applied. In one example, an adult child has an auto accident and is likely to clear the threshold and allow a parent to take FMLA leave. In another example, an adult child suffering from diabetes is determined not to clear the threshold for the parent to take FMLA leave.

The interpretation letter can be found here.  If you find yourself dealing with an adult child situation the letter is a good starting point.   

On a side note, the DOL interpretation letter contained what appears to be a simple acknowledgement of a likely increase in the number of adult children situations that will now qualify for FMLA leave as a result of the ADA Amendments Act (ADAAA) passed a couple of years back. Employers should take note and read this as a cautionary warning from the DOL. In terms of whether an adult child is "disabled," expect the DOL to answer that question "yes" in most cases.   

 

 


Editors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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