DOL: New Administrator’s Interpretation of FMLA and Leave for Adult Children

On Monday, the Wage and Hour Division (WHD) of Department of Labor issued its first Administrator's Interpretation of the FMLA since June 2010. Administrator's Interpretation No: 2013-1 seeks to clarify the FMLA definition of adult "son or daughter" who is incapable of self-care because of a mental or physical disability. Those in Central Ohio may recall that the Sixth Circuit addressed this issue in Novak v. MetroHealth Medical Center, 503 F.3d 572 (6th Cir. 9/28/07). However, since the time of that decision, Congress amended the ADA to expand the definition of "disability." Not only have the number of "major life activities" expanded, but "the definition of 'substantially limited' does not require that the impairment prevent, or severely or significantly restrict, performing a major life activity" and precludes consideration of most mitigating measures (such as medication). Nonetheless, the adult child must still also be incapable of self care before the parent will be entitled to FMLA leave.

An issue left unclarified, however, is being able to reliably determine within days of an FMLA request whether an adult child's temporary injury or illness will qualify as a disability. Another issue "clarified" by the WHD is that the age of the son or daughter at the onset of a disability is irrelevant to the determination. Finally, the WHD clarifies that parents of servicemembers who have exhausted their 26 weeks of leave to care for an adult son or daughter are still entitled to another 12 weeks of FMLA leave each new leave year to care for a qualified adult child without regard to the prior use of servicemember leave.

Disability/Incapable of Self Care

As explained by the WHD:

The FMLA regulations define "incapable of self-care because of mental or physical disability" as when an adult son or daughter "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)." Id. at § 825.122(c)(1). A parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:

(1) has a disability as defined by the ADA;

(2) is incapable of self-care due to that disability;

(3) has a serious health condition; and

(4) is in need of care due to the serious health condition

. . . .

[P]ursuant to the ADAAA, an impairment that is "episodic or in remission" is a disability if, when active, the impairment would substantially limit a major life activity.  . . . There is also no minimum duration required for an impairment to be a disability under 42 U.S.C. § 12102(1)(A). The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of the ADA.  

Even if a child has a disability, an adult son or daughter must also be found incapable of self-care, which

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). Activities of daily living include "adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc." Id. The list of ADLs and IADLs in the regulations is not exhaustive, and additional activities such as assistance with medication management, should also be considered in determining whether an adult son or daughter is incapable of self-care because of a disability. The determination of whether an adult son or daughter is incapable of self-care due to a disability under the FMLA is a fact-specific determination that must be made based on the individual's condition at the time of the requested leave. Such a determination must focus on whether the individual currently needs active assistance or supervision in performing three or more ADLs or IADLs.  (emphasis added).

In addition, even if the disabled adult child is incapable of self care, the parent must be needed to care for the child before the parent qualifies for FMLA leave. This includes situations where:

[t]he parent [is] needed to care for his or her adult son or daughter if, for example, because of the serious health condition the adult child is "unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor." Id. at § 825.124(a). The term "needed to care" also includes providing psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care. Id.

The WHD provides some examples of how it views various situations:

Example 1: An employee's 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major 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. (emphasis added).

Example 2: An employee's 25-year old son has diabetes but lives independently and does not need assistance with any ADLs or IADLs. Although the young man's diabetes qualifies as a disability under the ADA because it substantially limits a major life activity (i.e., endocrine function), he will not be considered an adult "son" for purposes of the FMLA because he is capable of providing daily self-care without assistance or supervision. Therefore, if the son is admitted to a hospital overnight for observation due to a skiing accident that does not render him disabled, his parent will not be entitled to take FMLA leave to care for him because he is over the age of 18 and not incapable of self-care due to a mental or physical disability.

If the son later becomes unable to walk and is also unable to care for his own hygiene, dress himself, and bathe due to complications of his diabetes, he will be considered an adult "son" as he is incapable of self-care due to a disability. The son's diabetes will be both a disability under the ADA and a chronic serious health condition under the FMLA because his condition requires continuing treatment by a doctor (e.g., regular kidney dialysis appointments). If his parent is needed to care for him, his parent may therefore take FMLA-protected leave to do so.

Servicemember Leave/Miscellaneous

Under the military caregiver provision, a parent of a covered servicemember who sustained a serious injury or illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period if all other requirements are met. The servicemember's injury, however, may have an impact that lasts beyond the single 12-month period covered by the military caregiver leave entitlement. Thus, this interpretation clarifies that the servicemember's parent can take FMLA leave to care for a son or daughter in subsequent years due to the adult child's serious health condition, as long as all other FMLA requirements are met.

Example: A father has exhausted his 26 workweeks of military caregiver leave to care for his 20-year old son, a returning servicemember who sustained extensive burn injuries to his arms and torso. In the next FMLA leave year, the father seeks leave from his employer to care for his son as he undergoes and recovers from additional surgeries and skin graft procedures. The father will be entitled to take up to 12 workweeks of FMLA-protected leave to care for his son because his son's burn injuries that substantially limit his ability to perform manual tasks constitute a disability under the ADA, the son is incapable of self-care due to a disability (i.e., he needs active assistance or supervision in bathing, dressing, and eating), the son's burn injuries are a serious health condition because they require continuing treatment by a health care provider, and the father is "needed to care" for the son.
 

One last point:

The FMLA does not require that a biological or legal relationship exist between the employee and the child. See 29 C.F.R. § 825.122(c)(3). The FMLA definition of "son or daughter" therefore includes a child of a person standing in loco parentis—those with day-to-day responsibilities to care for or financially support a child.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: FMLA Does Not Cover Care For Adult Child With Temporary Impairment and Does Not Require Employers to Obtain Second Medical Opinion

On September 28, 2007, the federal Sixth Circuit Court of Appeals affirmed summary judgment in favor of an employer and dismissal of the FMLA claims of a former employee. Novak v. MetroHealth Medical Center, No. 06-3036 (6th Cir. 9/28/07). First, the Court noted that the employee could not prove that she suffered from a “serious health condition” covered by the FMLA because the medical certifications she had submitted to her employer were insufficient. Among other things, the physician who purportedly provided the incomplete certifications of the chronic back condition admitted that she had not seen or treated the plaintiff in over four months before the plaintiff sought FMLA leave. The employer gave the plaintiff a week to cure the deficiency, and she submitted three additional (but deficient) certification forms, but she never sought a certification from her actual treating physician. The court also held that the employer was not required to obtain a second medical opinion before rejecting the plaintiff’s deficient certification forms. While the FMLA permits employers to obtain second medical opinions, it does not require them to do so.

The Court also rejected the plaintiff’s argument that she was entitled to FMLA leave to care for her 18-year daughter while she suffered from temporary post-partum depression. First, the court noted that the plaintiff had failed to provide any medical certification that her daughter was even temporarily disabled from taking care of herself:

“The FMLA authorizes leave to care for a child 18 years of age or older only if the child is suffering from a serious health condition and “incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12)(B). Notably, [Plaintiff] did not provide any evidence or medical certification that [her daughter] was in fact unable to care for herself; rather, the certification and [her daughter’s] testimony all related to [her daughter’s] difficulty in caring for her newborn child (i.e., [Plaintiff’s] grandchild). But the FMLA does not entitle an employee to leave in order to care for a grandchild.”

Second, the Court found that the FMLA only permitted leave when the adult child was “disabled” as governed by the ADA. However, the evidence showed that the daughter’s post-partum depression was neither severe nor long term, as required by the ADA to qualify as a covered disability:

“We conclude, based on our evaluation of all the relevant factors, that [Plaintiff’s] daughter, . . . was not substantially limited in any major life activities — such as the activity of caring for oneself — and therefore was not disabled for purposes of the FMLA. First, [Plaintiff] has not presented sufficient evidence for a jury to conclude that [her daughter’s] impairment was severe. . . . Second, the undisputed facts clearly show that [her daughter’s] condition lasted only a week or two. . . . Such a short-term restriction on a major life activity generally does not constitute a disability. See Hein, 232 F.3d at 487. Third, [Plaintiff] has not produced any evidence indicating that [her daughter’s] postpartum depression inflicted any permanent or long-term impact on her health. In fact, the record evidence is to the contrary, demonstrating that [her daughter] recovered in a short period of time, and giving no indication that she endured any long-term adverse effects. Because [Plaintiff] has not established that her adult daughter suffered from a disability, the FMLA does not authorize [Plaintiff’s] leave to care for her.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney. Insomiacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/07a0398p-06.pdf.