Clarification of FMLA Leave for Children with a Disability

YellowQuestionMark.jpgThe Department of Labor's Wage and Hour Division's acting Deputy Administrator issued an Administrator's Interpretation (2013-1) that is intended to clarify a question employers and employees had under the Family Medical Leave Act (FMLA) and involving an employee seeking leave to care for an adult son or daughter with a disability.

Specifically, under the January 14, 2013 Interpretation, the date of onset of the disability is irrelevant to the definition of "son or daughter" under the FMLA. Prior to this Interpretation, there was uncertainty as to the FMLA's application where a disability does not end when a child turns 18 and persons over 18 may have the same need for care as those under 18. The Interpretation also provides guidance on the application of the ADAAA to the FMLA, and FMLA protections for parents of wounded military service members.

Overview of the FMLA

Under the FMLA, an employee is entitled to take up to 12 weeks of leave from work in a 12-month period to care for a son or daughter who is an adult (18 years of age or over), if the son or daughter:

  • Has a disability as defined by the ADA;
  • Is incapable of self-care due to that disability; 
  • Has a serious health condition; or
  • Is in need of care due to the serious health condition.

The FMLA, however, and its regulations do not address the question of whether it is relevant to the definition of "son or daughter" under the FMLA if the disability begins on or after the son or daughter turns 18 years old. Because the FMLA provides parental leave rights to care for a minor child who has a serious health condition, without regard to whether the child has a disability, this question is not relevant to children under the age of 18. 

The Take-Away for Employers

The January 14, 2013 Interpretation is quite extensive and it also provides guidance on the application of the ADAAA to the FMLA, and FMLA protections for parents of wounded military service members. Accordingly, employers or their HR professionals should review it with their employment attorneys as may be needed. 

But what employers and employees need to understand with respect to FMLA issues involving children is that under the January 14, 2013 Administrator's Interpretation, the date of onset of the disability is irrelevant to the definition of "son or daughter" under the FMLA.

For more information on the FMLA or other federal or Michigan employment legal issues, contact Jason M. Shinn, a Michigan employment lawyer who regularly represents companies and individuals in addressing employment legal matters.

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