On January 14, 2013, the Wage and Hour Division of the U.S. Department of Labor issued guidance in the form of an Administrator Interpretation, which seeks to clarify the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”) as it pertains to a child 18 years old or older and is incapable of self-care.
The FMLA entitles eligible employees of covered employers to take unpaid leave for a medical or family reason. Among other things, the FMLA entitles an eligible employee to twelve weeks of leave in a 12-month period to care for the “serious health condition” of a son or daughter. In situations where the son or daughter is 18 years old or older, an employee is not permitted to take leave to care for such child unless the child is incapable of self-care because of a mental or physical disability at the time the FMLA leave begins.
In determining whether the condition qualifies as a mental or physical disability, employer considering leave requests must look to the Americans with Disability Act and related regulations issued by the Equal Employment Opportunity Commission, which provide a definition of such disabilities.
An individual is incapable of self-care when such individual 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.”
Determinations under the FMLA depend upon the specific facts and circumstances of a particular situation.
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