What are the criteria for using FMLA to care for adult children?
Posted November 30, 2017
The FMLA entitles eligible employees to take job-protected leave for certain qualifying reasons, including to care for a spouse, parent, or child with a serious health condition. “Child,” for purposes of the FMLA, includes biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in as a parent who is either under age 18, or 18 or older and incapable of self-care because of a disability.
In order for an employee to take FMLA leave to care for an adult child, the child would need to meet the following:
- Have a disability as defined by the Americans with Disabilities Act (ADA),
- Be incapable of self-care due to that disability,
- Have a serious health condition, and
- Be in need of care due to the serious health condition.
The first two bullets focus on the ADA while the second two refer to the FMLA. For the first bullet, a disability under the ADA is an impairment that substantially limits one or more major life activities. Many of these terms could use some defining.
- Impairment: a physiological disorder affecting one or more of a number of body systems, or a mental or psychological disorder.
- Substantially limits: Does not require that the impairment prevent, or severely or significantly restrict, performing a major life activity.
- Major life activities: Activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communication, working, normal cell growth, and the operation of a major bodily function such as immune, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Moving on to the second bullet, to be incapable of self-care, the adult child would need to require active assistance or supervision in three or more activities of daily living or instrumental activities of daily living. These would include caring appropriately for one’s grooming and hygiene, bathing, dressing, and eating; cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, and so on.
The disability would not need to have begun at any particular time. If, for example, an employee’s adult child is involved in a car accident and suffers a disability because of that accident, the employee could still take FMLA leave to care for the child, even though the child was an adult when the disability began.
Every now and then, an employee might ask if he or she can take FMLA leave to care for a sibling (or other family member) who has a disability and for whom the employee has guardianship or power of attorney. In such a situation, the employee and the sibling would need to have a parent/child relationship. The employee would need to have stood in for the sibling when the sibling was a child, or the sibling would need to have stood in as a parent to the employee when the employee was a child. Only in these situations could an employee take FMLA leave to care for an adult sibling. Simply having guardianship or power of attorney does not create a parent/child relationship for purposes of the FMLA.
While determining whether an employee is entitled to FMLA leave to care for an adult child can seem daunting on the surface, getting familiar with a few terms, accepting that there are few bright line tests under the ADA, and looking at all the facts involved can go a long way in making the task more manageable.
J. J. Keller's Essentials of FMLA manual helps HR pros understand and comply with the FMLA rules, control costs related to leave taken, and minimize the law's potential disruption to their organizations' operations.
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