Intersection of FMLA and ADA

Overview
The ADA Amendments Act of 2008 broadened the definition of disability. As a result, more employees may qualify for Family and Medical Leave Act (FMLA) leave to care for an adult son or daughter with a serious health condition.

An employee’s right to take FMLA leave to care for an adult child depends on the child’s condition and care needs at the time leave begins. The fact that the child is age 18 or older does not automatically prevent FMLA coverage.

Who qualifies as an adult child
For FMLA leave to care for a family member with a serious health condition, a “son or daughter” may include a biological child, adopted child, foster child, stepchild, legal ward, or a child of a person standing in loco parentis.

An adult child age 18 or older qualifies only if the child is incapable of self-care because of a mental or physical disability at the time the employee’s FMLA leave begins. The disability may have begun before or after the child reached age 18.

Incapable of self-care
An adult child is incapable of self-care when the child requires active assistance or supervision to provide daily self-care in at least three activities of daily living (ADLs) or instrumental activities of daily living (IADLs).

Examples of ADLs include:

• Grooming and personal hygiene.
• Bathing.
• Dressing.
• Eating.
• Examples of IADLs include:
• Cooking.
• Cleaning.
• Shopping.
• Taking public transportation.
• Paying bills.
• Maintaining a residence.
• Using a telephone or other communication device.
• Using the post office.
• Managing medication or other comparable daily-living activities.

The lists are not exhaustive. The determination is fact-specific and should consider the adult child’s actual condition and care needs when leave is requested, including the current effects of an episodic impairment.

Conditions that may qualify
An adult child may qualify for FMLA purposes when the child has:

• A disability as defined by the ADA.
• A serious health condition as defined by the FMLA.
• A disability-related inability to provide self-care in at least three ADLs or IADLs.
• A need for the parent to provide care because of the serious health condition.

Examples may include developmental or intellectual disabilities, Down syndrome, autism spectrum disorder, traumatic brain injury, paralysis, cancer, serious mental-health conditions, serious injuries from a motor-vehicle accident, or another physical or mental condition that meets the legal standards.

A condition does not have to be permanent, lifelong, or diagnosed before age 18. Temporary or episodic conditions can qualify if they meet the ADA disability, self-care, serious-health-condition, and need-for-care requirements at the time leave begins.

Serious health condition and need for care
The adult child must also have a serious health condition. Under the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition involving inpatient care or continuing treatment by a health-care provider.

The employee must be needed to care for the adult child. Care may include providing physical care, psychological comfort and reassurance, transportation to medical appointments, arranging changes in care, or substituting for another person who normally provides care. The city may request appropriate FMLA medical certification addressing the adult child’s serious health condition, disability-related incapacity for self-care, and the employee’s need to provide care.

Pregnancy and temporary conditions
Pregnancy-related incapacity can be a serious health condition under the FMLA. However, pregnancy alone is not automatically an ADA disability, and an adult child’s pregnancy-related condition will qualify the parent for FMLA leave only if the adult child is also incapable of self-care because of an ADA disability and all other adult-child FMLA requirements are met.

Similarly, a routine surgery alone does not automatically qualify a parent for FMLA leave to care for an adult child. But surgery may qualify when it results in inpatient care or continuing treatment and the adult child meets the disability, incapacity-for-self-care, and need-for-care requirements. An elective surgery requiring an overnight hospital stay, for example, may satisfy the FMLA serious-health-condition definition, but the separate adult-child requirements still apply.

Key sources

• FMLA, 29 U.S.C. §§ 2601 et seq.
• 29 C.F.R. § 825.122(d), defining adult “son or daughter” and “incapable of self-care.”
• U.S. Department of Labor, Fact Sheet #28K, “Son or Daughter” 18 Years of Age or Older under the FMLA.
• U.S. Department of Labor, Administrator’s Interpretation No. 2013-1, addressing FMLA leave to care for adult children.