Hunton Employment & Labor Perspectives

On January 14, 2013, the Department of Labor (“DOL”) issued guidance further defining the meaning of “son or daughter” within the Family and Medical Leave Act (“FMLA”).  The FMLA provides qualified employees up to 12 weeks of leave within a 12 month period to care for a son or daughter with a serious health condition.  Under certain circumstances, a son or daughter may include an individual over the age of 18, if that individual has a disability.  The DOL now clarifies, that a child over the age of 18 with a disability may qualify as a son or daughter within the FMLA, regardless of the individual’s age when the disability occurred.

Disabled and Incapable of Self-Care

As a starting point, the FMLA includes a fairly expansive definition of son or daughter,  providing employees with leave to care for a biological, adopted, or foster child, a stepchild, a legal ward or a child to whom the employee stands in loco parentis.  Individuals over the age of 18 may qualify as a son or daughter within the FMLA if they have a disability that makes them incapable of self-care.  As with the Americans with Disabilities Act, disability is a mental or physical impairment that substantially limits one or more major life activities.  The DOL’s new interpretation clarifies that the onset of the disability does not have to occur before the individual turns 18, but rather may occur at any age.  As noted, in addition to satisfying the definition of disability, the individual must also be incapable of self-care.  This means that the individual requires active assistance or supervision to provide daily self-care in three or more activities of daily living (“ADLs”) or instrumental activities of daily living (“IADLs”).  Examples of ADLs including caring appropriately for grooming and hygiene, bathing, dressing or eating.  IADLs include things such as taking public transportation, paying bills, using telephones and maintaining a residence. 

Need Care Because of the Serious Health Condition

Not only must the individual have a disability and be incapable of self-care, but in order to trigger the FMLA he or she must have a serious health condition as defined by the FMLA and must also need care (by the employee requesting leave) because of the serious condition.  An example of such a situation is provided by the DOL.  The DOL explains that an employee’s 19 year old daughter who is diagnosed with cancer would be disabled.  If the employee’s daughter suffers from the effects of chemotherapy and cannot perform activities of daily living, she would be incapable of self-care and therefore qualify as a “daughter” within the FMLA.  The employee would be granted FMLA leave to care for her daughter in situations where the daughter had to receive inpatient care or continuing treatment by the doctor and needed to be driven to her radiation treatments.

The DOL’s recent guidance follows its previous expansion of the term son or daughter within the FMLA, which we discussed in an earlier post.  Considering this pattern of interpretation by the DOL, it would seem evident that this term should be construed broadly.  Yet, regardless of this history, whether someone qualifies as a son or daughter is a fact-specific determination that should be carefully reviewed.  Employers should be aware of the DOL’s new guidance when making this determination and be sure to properly apply it when administering FMLA leave.