Does the FMLA extend job protected leave for the care of an employee’s adult child?

Under a recent Department of Labor interpretation of the Family and Medical Leave Act, the DOL interpreted the law to provide job protected leave to employees for the care of the employee’s adult child.  Whether the FMLA applies to tribal employers is an open question, but if it does, the circumstances giving cause for leave is an important aspect of the law.

The FMLA entitles an eligible employee to job protected leave to care for, among others, a minor son or daughter with a serious health condition.  A son or daughter is a biological, adopted, or foster child.  But does this leave extend to the adult children of employees?  The answer is yes if the child:

1.  has a disability as defined by the Americans with Disabilities Act;

2.  is incapable of self-care due to that disability;

3.  has a serious health condition;

4.  is in need of care due to the serious health condition.

If the above four ingredients exist, the employee, if otherwise eligible (1 year of work and 1,250 hours) may be entitled to leave.

Note that the DOL clarified an issue which generated some confusion in connection with care of adult children.  The age of onset of the disability was believed by some to be relevant to support the argument that onset had to happen when the child was not yet 18 years old, but the DOL declared that age of onset is not relevant.

Remember that with the recent legislative changes to the ADA, there is an expanded definition of disability since the component “major life activity” reflects the employee’s work and not her home activities.  The DOL will interpret disability broadly which is consistent with this modification.

A challenge in the practical application of this rule is the absence of a section in the certification form for a medical doctor to provide the necessary information to support FMLA protected leave.  Those statutory forms are outdated and we are anticipating an update which will hopefully reflect the above referenced scenario as well.

Recommendation:  First determine whether you follow the FMLA and if you do, evaluate the impact of this DOL interpretation on your workforce.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.