FMLA definition of “son or daughter” as it applies to an adult child clarified

The Department of Labor (“DOL”) recently provided clarification of the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”) as it applies to: (1) an individual 18-years of age or older (2) who is incapable of self-care (3) because of a mental or physical disability.

The FMLA’s definition of an adult “son or daughter” relies upon the Americans with Disabilities Act of 1990 (“ADA”) definition of “disability.”  The Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) expanded the ADA’s definition of the term “disability.”

A child under 18 years of age is a “son or daughter” under the FMLA regardless of whether or not the child has a disability. An eligible employee requesting FMLA leave to care for a minor son or daughter must only show a need to care for the child due to a serious health condition.  However, in order to meet the FMLA’s definition of a “son or daughter,” for an adult child, that child must have a mental or physical disability and be incapable of self-care because of that disability.

Under the DOL’s clarification, to be covered as a “son or daughter” 18-years of age or older under the FMLA, the son or daughter’s disability may occur, or manifest, at any age.  The disability need not occur or be known about before the son or daughter turns 18.

This will enable more parents who must care for their adult children, due to the adult child’s serious health condition, to take FMLA-protected leave.

For specific questions regarding FMLA, please contact your labor law counsel.

By Lisl Duncan

Legal Developments