ADAAA Expands FMLA for Adult Children

Just when employers thought they had FMLA figured out, ADAAA throws in a new wrinkle.

According to attorney Joan Gale and several other noted experts, the expansion of ADA under ADAAA will enable many more employees to take FMLA for adult children, even when those children are not members of the military or veterans.

An employee can take unpaid, job-protected leave of up to 12 weeks under the federal Family and Medical Leave Act when an immediate family member has a serious health condition. Originally, the FMLA was crafted so that immediate family members included parents, a spouse, and a son or daughter under the age of 18.

Sons and daughters over the age of 18 were included in an employee’s FMLA leave only if they had a disability under ADA and were incapable of self-care.

Essentially, the ADA extended the “son or daughter” status indefinitely, but only for individuals that met the narrow ADA standard for a disability. Generally, the ADA required that the disability interfere with basic life functions in three or more areas, such as being unable to bathe, dress or groom themselves, being unable to walk or use public transportation, and physically unable to shop or cook food. In many cases, a blind or deaf individual over 18 did not meet this very strict definition of disability, and his or her parent would not qualify for FMLA, even if the blind or deaf offspring also had a serious health condition such as cancer.

The “disability” designation is still a requirement, however, under ADAAA a new standard for disability has been introduced. The more liberal standard for disability includes many more conditions than in the past. Certain conditions including blindness, deafness and mental retardation are presumed to be disabilities under ADAAA. Other conditions are often disabilities, such as arthritis or diabetes. In addition, a condition such as cancer or rheumatoid arthritis is a disability, even if it is currently in remission. An employee can take FMLA to care for a son or daughter over the age of 18 with any of these conditions, who is also unable to care for themselves for any reason, including a serious health condition.

A 27-year-old blind son who is in traction with two broken legs, probably cannot care for himself. His mother or father would be entitled to take FMLA to care for him. If the son were not blind, the parents would not qualify for FMLA for his serious health condition, because he is over the age of 18.

The adult child must still require supervision or active assistance to complete self-care activities in three or more activities of daily living or instrumental activities such as paying bills, using a telephone and telephone directory or using a post office. A minor illness such as a cold, flu, ear infection or a broken arm not requiring traction would not interfere with the adult child’s ability to care for himself, and not trigger FMLA.

Many types of surgery do not render the adult child incapable of self-care, and therefore do not permit the employee to take FMLA. Brain damage, paralysis or other long-term illnesses or accidents may very well make the offspring incapable of self-care. When there is doubt, the FMLA certification form should be used for the physician to designate whether or not the patient is capable of self-care.

The ADAAA still does not permit a parent to take time off to care for a daughter over the age of 18 who has recently given birth. In the overwhelming majority of cases, the daughter is capable of self-care after normal childbirth.

Employers should remember that an employee can take leave for a child of any age who is in the military service, or who is a veteran injured on active duty.