While the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) are separate statutes administered by separate governmental agencies, they are interconnected with respect to an employee’s right to take FMLA leave to care for an adult son or daughter who is incapable of self-care because of an ADA disability. On January 14, 2013, the Department of Labor Wage & Hour Division issued Administrator’s Interpretation No. 2013-1 to clarify this issue.
The new Administrator’s Interpretation confirms that the very broad concept of disability enacted by the Americans with Disabilities Act Amendments Act of 2008 will be used for analyzing whether an adult son or daughter is disabled. It clarifies that the disability of the son or the daughter need not have onset before the son or daughter turned 18 years of age. For example, a 70 year old employee may be eligible for FMLA for a 50 year old son or daughter who had just had a stroke or other disability interfering with self-care.
The Administrator’s Interpretation also reconfirms that “son or daughter” is a broad concept covering far more than a biological relationship. It also covers adoptive relationships, foster parent-child relationships, stepchildren, legal wards, or a child of a person standing in loco parentis. The in loco parentis relationship has been previously addressed in Administrator’s Interpretation 2010-3 (June 22, 2010). The in loco parentis Administrator’s Interpretation states the in loco parentis relationship is supported by day-to-day responsibilities to care for the child or financial obligations to support the child.
In order to meet the FMLA’s definition of a “son or daughter,” an adult child (i.e., one who is 18 years of age or older) must have a mental or physical disability and be incapable of self-care because of that disability. An employee parent will then be entitled to take FMLA leave if the adult son or daughter: (1) Has a disability as defined by the ADA; (2) Is incapable of self-care due to that disability; (3) Has a serious health condition; and (4) Is in need of care due to the serious health condition.
The ADAAA dramatically broadened the ADA’s definition of “disability” (as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment) by narrowing the meaning of “substantially limits” and expanding the meaning of “major life activities.” Additionally, the ADAAA made clear that impairments “episodic or in remission” would be considered disabilities if, when active, the impairment would substantially limit a major life activity. The ADAAA imposes no minimum duration for an impairment to be a disability and although pregnancy itself is not considered a disability, pregnancy-related impairments may be disabilities.
The Administrator’s Interpretation also emphasizes that the adult child must be “incapable of self-care” because of his or her disability. The FMLA regulations define “incapable of self-care” to mean that the “individual requires active 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).” 29 C.F.R. § 825.122(c)(1). Activities of daily living include “adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.” These lists are not exhaustive and the Interpretation specifically mentions that medication management is another example of a daily activity. Unfortunately, daily living activities are not addressed in the FMLA medical certification for the serious health condition of an employee’s family member. The Administrative Interpretation notes the employer will need to analyze incapacity of self-care based on the individual’s current needs with respect to three or more ADLs or IADLs. However, the Administrative Interpretation does not explain how the employer is to gather this information.
The adult child must also have an FMLA serious health condition. The analysis here is the same as when determining whether an employee has a serious health condition. The employer may require a health care provider’s medical certification of the serious health condition to support the leave request.
The element of a parent being needed to care for the adult son or daughter because of the adult child’s serious health condition is also expansive. It includes psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care. This factor is also addressed in the FMLA medical certification.
The Administrator’s Interpretation addressed one additional issue. The FMLA had previously been expanded to provide FMLA caregiver leave for up to 26 workweeks in a single 12 month period for the parent of a covered service member who sustained a serious injury or illness in the line of duty. If this military caregiver leave is exhausted, the service member’s parent may take FMLA leave in subsequent FMLA years to care for that same adult child who was wounded in military service due to the adult child’s disability, inability to provide daily self-care because of that disability, serious health condition, and need for the employee parent to care for that son or daughter due to the serious health condition.
Denial of an employee’s request for FMLA leave to care for the employee’s adult son or daughter will be difficult. It will require factual determinations concerning whether the adult child is a “son or daughter” including analysis of a possible in loco parentis relationship, whether the adult child has an ADAAA “disability,” whether the adult child is incapable of self-care because of that disability, whether the adult child has a serious health condition under the FMLA, and whether the employee parent is needed to care for that adult child due to his or her serious health condition. While some employers may diligently pursue the facts to make the above determinations, it is likely that others will err on the side of caution (or simply avoid the time consuming inquiries) and go ahead and grant the FMLA leave. As has always been true with FMLA leave, the greatest practical restriction on the employee’s use of the leave is that the leave is either unpaid or the employee must draw on vacation, PTO, or other sources of paid leave to substitute for the unpaid FMLA leave.
To sum up, FMLA leave for a son or daughter is not restricted to children under 18, is not restricted to a biological child of the employee, and is not restricted to the narrower pre-ADAAA definition of disability. For those employers willing to undertake the analysis, the most meaningful inquiry likely will be whether the adult child is unable to carry out three or more tasks of daily living.