A new interpretation letter from the U.S. Department of Labor may change how some employers administer their FMLA policies. Under the FMLA, qualified employees may take up to twelve weeks of unpaid leave during a twelve-month period to care for a son or daughter with a serious health condition. The FMLA defines a “son or daughter” as a biological or adopted child, a stepchild, a foster child, or a legal ward who is either under the age of eighteen, or eighteen years of age or older and “incapable of self-care because of a mental or physical disability.” Some of the DOL’s previous interpretation letters suggested that an adult son or daughter must have become disabled before the age of eighteen in order for a parent to qualify for FMLA leave.
The DOL’s new interpretation letter clarifies that the age a son or daughter becomes disabled is not relevant when determining a parent’s entitlement to FMLA leave. A parent who otherwise satisfies the FMLA’s eligibility requirements will be entitled to FMLA leave to care for an adult son or daughter who (1) has a disability as defined by the ADA; (2) is incapable of “self-care,” as defined by the FMLA, because of his or her disability; (3) has a serious health condition; and (4) requires care because of his or her serious health condition. In light of this new interpretation letter, employers should review their current FMLA policies and make any necessary changes.