On January 14, 2013, the Department of Labor (DOL) issued a new Administrator’s Interpretation (No. 2013-1), providing guidance regarding the possible eligibility of an employee to take Family and Medical Leave Act (FMLA) protected leave to care for an adult son or daughter.  While this DOL interpretation does not have the force of regulations and is not necessarily binding on the courts, it is an important official statement of compliance guidance from the administrating federal agency.
Generally, the FMLA permits an employee to take leave to care for a son or daughter with a serious health condition who is either (i) under 18 years of age or (ii) is 18 years of age or older and incapable of self-care because of a mental or physical disability as defined under the Americans with Disabilities Act (ADA).  The issue that has troubled employers and courts through the years is whether coverage to care for an adult son or daughter is dependent on whether the son or daughter became disabled before or after they turned 18 years old.  This recent DOL guidance expressly states that the son’s or daughter’s age at the commencement of their disability is not relevant.
The Administrator’s Interpretation states that an otherwise eligible employee will be entitled to take FMLA leave to care for an adult son or daughter if the following four factors are each met.  The adult son or daughter must:  (1) have an ADA-covered disability; (2) be incapable of self-care due to that disability; (3) have a serious health condition; and (4) be in need of care due to a serious health condition.  As noted in the Administrator’s Interpretation, the 2008 amendments to the ADA significantly expanded the definition of a covered disability.
The DOL guidance also expressly addresses the situation in which an employee may be requesting FMLA leave to provide care to an adult son or daughter who has been wounded or sustained an injury or illness during military service.  The FMLA specifically permits such an employee up to 26 weeks of unpaid leave in a single 12-month period to care for their son or daughter who became injured or ill in the line of duty.  The Administrator’s Interpretation notes that the service member’s serious health condition may last longer than that single 12-month period.  In that situation, an otherwise eligible employee would also be entitled to take FMLA leave in subsequent years for the purpose of providing care to an adult child.
Takeaway:  Employers should not rely on whether an adult son or daughter became disabled prior to reaching 18 years of age when analyzing an employee’s request for FMLA leave to care for that son or daughter.  The DOL has stated that the son or daughter’s age at the time their disability commenced is immaterial.