Benefits & Compensation News

New DOL guidance clarifies 3 finer points of FMLA

For the first time in a while, the DOL’s issued guidance to help employers comply with the FMLA.

It came in the form of an Administrator Interpretation Letter, and its purpose was to clarify these three areas:

Leave to care for a child

Priority No. 1 for the DOL was to clarify when an employee is eligible to take FMLA leave to care for a son or daughter.

The letter says that when the child is younger than 18 years old, all the parent needs to show is that the child is suffering from a serious health condition and needs care as a result.

But when it comes to children 18 and older, things get much more complicated.

For a parent to take FMLA to care for an adult son or daughter, the child must:

  1. have an ADA-defined disability
  2. be incapable of self-care due to that disability
  3. have a serious health condition, and
  4. be in need of care because of the serious health condition.

So to be clear, any child 18 or older can’t have a serious health condition alone for the parent to be FMLA-eligible. The child must also have a disability.

In addition, the interpretation letter drives the point home that the age of the child at the onset of the disability does not matter for FMLA purposes. So if a child developed a disability at age 16 and it carries over into adulthood, that disability can still be a contributing factor in meeting the requirements listed above.

ADAAA

The Americans with Disabilities Act Amendments Act (ADAAA) significantly expanded the definition of a “disability.”

And in the interpretation letter the DOL endorsed the changes to the definition of a disability the ADAAA put in place and the impact they have on the FMLA.

It reiterated that the FMLA relies on the ADA’s definition of a disability when determining if a parent qualifies for leave to care for an adult child. It then went on to say that the expanded definition will enable more parents to take FMLA-protected leave to care for their adult sons or daughters with disabilities.

It also added that employers should lean in favor of providing “broad coverage” when it comes to determining whether an adult child has a disability, and employers shouldn’t conduct an “extensive analysis” of whether a health condition is actually a disability.

One example the letter provides: An employee’s 37-year-old daughter suffers a shattered pelvis in a car accident, substantially limiting several life activities — like walking, standing and sitting.

Although she’s expected to recover, she won’t be able to walk for at least six months (the amount of time a medical condition must last to be considered a disability under the ADA). As a result, she’ll need assistance with at least three activities of daily living — like bathing, dressing and maintaining her residence.

Her shattered pelvis also qualifies as a serious health condition.

Due to these factors, her parent will qualify for FMLA leave.

Military leave

The interpretation letter also clarified that parents of adult children who’ve sustained an injury or illness as a result of service in the military may take up to an additional 12 weeks of leave — on top of the 26 weeks the law provides — in a subsequent year.

An example from the DOL: A father exhausts his 26 weeks of military caregiver leave to care for his 20-year-old son, who sustained extensive burn injuries.

In the following FMLA leave year, the father can take an additional 12 workweeks of FMLA leave as his son undergoes additional skin graft procedures and is substantially limited in his ability to perform several life activities — bathing, dressing and eating.

In this case, the burns count as a serious health condition because they require continuing treatment by a health care provider.

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