Employers should be aware that interpretation of being incapable of self-care and having a disability are very broad.
The Americans with Disabilities Act Amendments Act (ADAAA) is having an impact in other areas of law, specifically the FMLA. A good example concerns the FMLA provision for leave to care for an adult son or daughter who is incapable of self-care. The United States Department of Labor issued Administrator’s Interpretation No: 2013-1 on January 14, 2013 stating: “It is the Administrator’s interpretation that the ADAAA’s broad definition of ‘disability’ will therefore increase the number of adult children with disabilities for whom parents may take FMLA-protected leave if the adult son or daughter is incapable of self-care because of the disability and in need of care due to a serious health condition.”
The question is a common one for many employers: can a parent take FMLA leave to care for an adult son or daughter? The FMLA entitles a parent to take leave for a son or daughter with a serious health condition under 18 years of age. If the child is older than 18 years of age, the law allows leave when the adult child is incapable of self-care because of a mental or physical disability. But how is a mental or physical disability defined under the law?
Before answering this question, the Acting Deputy Administrator made clear that it does not matter whether the disability of the child commenced when the child was 18 or younger, or after turning 18. A child whose disability commenced in adulthood is still considered a “son or daughter.” The Administrator went on to state that FMLA adopts the ADA definition of disability, noting that the ADAAA broadened the definition of “disability” by expanding the definition of “major life activities.” They include performing manual tasks, standing, lifting, bending, seeing, hearing, and other things that most people do easily, as well as a new category of operations of major bodily functions. Some of these major bodily functions are normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
The Administrator added that being incapable of self-care because of a disability means “the individual requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs).” 29 C.F.R. 825.122 (c)(1). Examples of ADLs include caring appropriately for one’s grooming, hygiene, bathing, dressing and eating. IADLs include cooking, cleaning, shopping, paying bills, maintaining a residence, and using telephones and directories.
The Administrator provides this example:
An employee’s 37-year-old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of life activities (i.e., walking, standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult ‘daughter’ under the FMLA as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.
The take-away from this Department of Labor Interpretation is that HR professionals and employers need to realize that FMLA leave to care for an adult son or daughter will become more common in light of the ADAAA. It is a mistake to assume that FMLA leave will be rare or unusual when leave is requested to care for a child or son well over 18. The test for being incapable of self-care is fairly broad and relatively easy to meet, as noted above. Similarly, the test for disability status is much easier to meet than it was before 2008 and the passage of the ADAAA.
This Interpretation can be found at 2013 DOL FMLA LEXIS 1 (January 14, 2013).
This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.