Employment-DOL Provides Guidance On The Definition Of “Son or Daughter” For purposes of FMLA

In Administrator’s Interpretation No. 2013-1, the Department of Labor (the “DOL”) clarifies the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (the “FMLA”), as it applies to an individual 18 years of age or older and incapable of self-care because of a mental or physical disability. Here is what the Administrator’s Interpretation says:

Background. The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. The FMLA defines a “son or daughter” as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis (i.e., a person with day-to-day responsibility) who is–(A) under 18 years of age or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability. A child under 18 years of age is a “son or daughter” under the FMLA without regard to whether or not the child has a disability. An eligible employee requesting FMLA leave to care for a son or daughter under 18 years of age must only show a need to care for the child due to a serious health condition.

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. The FMLA regulations adopt the ADA’s definition of “disability” as a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC) to define “physical or mental disability.” The FMLA regulations define “incapable of self-care because of that disability” as when an adult son or daughter requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living or instrumental activities of daily living. A parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, 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.

Impact of Age of Onset of Disability on FMLA Definition of Son or Daughter. The FMLA regulations define a “son or daughter” 18 years of age or older as one who is incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence. It does not matter if the disability occurs before the son’s or daughter’s 18th birthday.

Impact of the ADAAA on the FMLA Definition of Son or Daughter. The DOL has adopted the Americans with Disability Act (the “ADA”) definition of “disability”, to define “mental or physical disability” for purposes of identifying a son or daughter 18 years of age or older under the FMLA. Under that definition, a “mental or physical disability” is defined, for FMLA purposes, as a mental or physical impairment that substantially limits one or more of the major life activities of an individual, as those terms are defined by the ADA’s implementing regulations. The term “mental and physical disability” should now be defined, for FMLA purposes, in accordance with the amendments to the definition of disability made by the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), and the regulations which implement those amendments.

Other Points. The Administrator’s Interpretation also discusses the meaning of being “incapable of self-care due to a disability”, “serious health condition”, and “in need of care”, and the availability of FMLA Leave to care for adult children wounded in military service.