The U.S. Department of Labor (DOL) recently clarified an issue concerning an employer’s obligation to provide leave to an employee to care for his adult son or daughter. The FMLA regulations require an employer to provide leave to an employee to care for (1) a son or daughter who is under the age of 18; or (2) a son or daughter over the age of 18 who is “incapable of self-care because of a mental or physical disability.”
This seemingly straightforward regulation has caused a surprising amount of confusion. A few years ago, the DOL issued a guidance explaining that no legal relationship was required between the parent and the “son or daughter” but rather that any person acting in loco parentis (in the role of a parent) would suffice, such that caretakers, foster parents and the like were protected.
The DOL issued this new guidance to clarify that it was irrelevant for purposes of the FMLA whether the “mental or physical disability” of a son or daughter over the age of 18 arose before or after the child reached that age. The DOL has stressed this precise point twice before in a 1994 Opinion Letter and in the Final Rule which amended the FMLA regulations issued in 2009.
This recent guidance also clarified that the definition of a “mental and physical disability” includes the broader definition of a “disability” recognized in the Americans With Disabilities Act Amendments Act of 2008 (ADAAA). Under the ADAAA, Congress significantly broadened that term to, among other things, clarify that mitigating measures to ameliorate the effects of an impairment are not taken into account when determining whether someone has a disability.
These issues always seemed self-evident to me, especially since passage of the ADAAA, so it seems puzzling that the DOL would issue a guidance on them, but presumably the Department had received a number of questions on those issues and felt compelled to do so. Nonetheless, employers would be well-advised to review their handbooks to ensure that their FMLA and leave policies are consistent with this guidance.