FMLA Leave Covers Care of Children Regardless Of Age Disability Begins

The Wage and Hour Division of the Department of Labor has just issued an important opinion regarding the Family and Medical Leave Act. Officially entitled Administrator’s Interpretation No. 2013-1, the WHD has determined under the FMLA, an employee is eligible to take leave to care for a child who is “incapable of self-care because of a disability” regardless of the child’s age when the disability began.

The paper explains:

“Based on the purpose of the FMLA, the legislative history of the definition of ‘son or daughter,’ and WHD’s enforcement experience, as well as the example in the preamble to the 2008 FMLA Final Rule, it is the Administrator’s interpretation that the age of onset of a disability is irrelevant in determining whether an individual is a ‘son or daughter’ under the FMLA … An employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced.”

If you have questions about the FMLA or other employment related issues, it’s important to consult with an Atlanta medical leave attorney right away.

The FMLA provides that an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. A son or daughter is defined as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is
(A) under 18 years of age; or
(B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”

One question raised is what happens when an adult child becomes disabled? Does the age when the when a child become unable to care for themselves make a difference in terms of leave?

In it’s review, the Department of Labor determined that the age of onset of the disability is irrelevant. The WHD based its decision on the FMLA’s legislative history, along with congressional reports recognizing that adults who are unable to care for themselves have the same need for parental care as children under the age of 18.

The WHD also noted that where the disability occurs while the adult child is serving in the military, a parent of a covered service member who sustained a serious injury or illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period.
Further, because the service member’s injury could have an impact that lasts beyond the single 12-month period covered by the military caregiver leave entitlement, the WHD noted that the service member’s parent can take FMLA leave to care for a son or daughter in subsequent years because of the adult child’s serious health condition.

For more information about the FMLA or if you are considering taking leave – please contact the dedicated Georgia Family and Medical Leave attorneys at Buckley Bala Wilson Mew LLP for an immediate appointment.