Monday, March 11, 2013

Parents Allowed FMLA Leave For Adult Children

The Wage and Hour Division (WHD) issued an administrator's interpretation which clarified "the definition of 'son or daughter' under Section 101(12) of the Family and Medical Leave Act" (FMLA). (Click here for access.) The FMLA entitles eligible employees to 12 work weeks of unpaid, job protected leave to care for children with a serious health condition, either under 18 years of age or over 18 and unable to care for themselves due to a mental or physical disability. A parent caring for a seriously injured or ill military service-member is entitled to 26 work weeks of FMLA leave. The WHD interpretation clarifies that a parent caring for a service-member may take leave for subsequent years as well, since their injuries may last longer than a 12-month period.

There are four requirements that must be met in order for a parent to be entitled to take leave to care for a child. Those four requirements are that the child (1) have a disability as defined by the Americans with Disabilities Act of 1990, (2) be incapable of caring for him or herself due to that disability, (3) have a serious health condition, and (4) be in need of care because of that serious health condition. The WHD has made it clear that the age of the onset of a disability is irrelevant in the determination of a parent's entitlement to FMLA protected leave. The WHD looked to the purpose of the FMLA, WHD’s enforcement experience, and the example in the preamble to the 2008 FMLA Final Rule. This conclusion was also drawn by looking at the legislative history of the FMLA, which supported the contention that "Congress recognized that a disabled child’s need for care from a parent may not end when the child reaches the age of 18." Their reasoning for that conclusion was "that adults who are unable to care for themselves because of a disability have 'the same compelling need for parental care' as children under the age of 18."

To learn more about your rights to leave under the FMLA, visit the Department of Labor's website:

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