By Benjamin T. King – New Hampshire Employment Lawyer

A new U.S. Department of Labor (DOL) Administrator’s Interpretation has been issued to clarify who qualifies as an adult “son or daughter” whom an employee may take unpaid leave from work to care for and enjoy the job protections of the Family and Medical Leave Act (FMLA). An employee may qualify for twelve (12) weeks unpaid leave under the FMLA to care for an immediate family member with a serious health condition if the employee has worked for the employer at least 1,250 hours in the past year and if the employer has at least 50 employees.

An adult son or daughter must meet four requirements before the employee may take FMLA leave to provide care. (The employee must also meet all of the other requirements under the FMLA, such as employer coverage and employee eligibility.) The son or daughter must (1) have a mental or physical disability as defined under the Americans with Disabilities Act (ADA) as amended by the ADA Amendments Act (ADAAA), (2) be incapable of caring for himself because of the disability, (3) have a serious health condition, and (4) be in need of care because of the serious health condition.

In particular, the interpretation states that a child may become disabled after age 18 and still have her parent qualify to provide FMLA-protected care. The child’s age at onset of disability is irrelevant in determining whether her parent may qualify to provide FMLA care. An Administrator’s Interpretation doesn’t carry the weight of a judge’s opinion, but it offers guidance to managers applying the FMLA’s provisions in real life.

The interpretation also illustrates how the ADAAA expanded the ADA’s definition of disability by broadening the major life activities the disability affects. There’s no minimum duration for an impairment to be considered a disability, and an impairment that is in remission can still be considered a disability if it would substantially limit a major life activity when it’s active. Pregnancy-related impairments such as gestational diabetes also may be ADA-recognized disabilities.

Existing FMLA regulations govern whether someone is incapable of self-care because of a disability, and the FMLA’s definition of serious health condition still applies. Existing rules also govern whether a person is needed to care for the son or daughter; “needed to care” includes providing psychological comfort to a son or daughter receiving inpatient or home care.

The interpretation doesn’t apply to an employee’s ability to take FMLA military family leave for a son or daughter who has become injured or ill in military service. It may, however, affect employees who have exhausted their FMLA military family leave and need additional leave to provide care for a continuing condition. The interpretation states that a parent of a covered service member may take up to 26 workweeks of FMLA leave in a single 12-month period to provide care. In addition, the parent may take regular FMLA leave (up to 12 weeks of leave in a 12-month period) in the following 12-month period to provide care for the original illness or injury.

If you believe you are the subject of employment discrimination or other adverse employment action, you should consult an experienced employment lawyer at Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form for a free case evaluation.