Leave to Care for Adult Children: ADA and FMLA

Overview
The Family and Medical Leave Act (FMLA) may allow an eligible city employee to take unpaid, job-protected leave to care for an adult son or daughter with a serious health condition. For an adult child, FMLA eligibility depends in part on whether the child has a disability as defined by the Americans with Disabilities Act (ADA).

The ADA Amendments Act of 2008 broadened the ADA definition of disability. As a result, more adult children may meet the disability requirement for FMLA leave. However, an adult child’s disability alone does not establish FMLA entitlement. The employee, child, condition, and need for care must meet all applicable FMLA requirements.

When leave may apply
An eligible employee may take FMLA leave to care for an adult son or daughter age 18 or older when all of the following requirements are met:

• The adult child is a biological child, adopted child, foster child, stepchild, legal ward, or child of a person standing in loco parentis.
• The adult child has a mental or physical disability as defined by the ADA.
• The adult child is incapable of self-care because of that disability at the time FMLA leave begins.
• The adult child has a serious health condition under the FMLA.
• The employee is needed to care for the adult child because of that serious health condition.
• The city is a covered FMLA employer and the employee meets FMLA eligibility requirements.

The disability does not have to have existed before the adult child turned 18. The relevant question is whether the adult child meets the disability and self-care requirements at the time the employee’s leave is to begin.

ADA disability requirement
For this FMLA purpose, disability has the same meaning as under the ADA. An adult child may qualify if the child has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having an impairment.

The ADAAA requires disability to be construed broadly. A condition may qualify even if it is episodic, in remission, temporary, controlled by medication or other treatment, or not permanent. The city should avoid denying adult-child FMLA leave merely because the condition began after age 18, is expected to improve, or is not lifelong.

The FMLA adult-child rule still requires more than ADA coverage alone: the disability must make the adult child incapable of self-care, and the adult child must also have a qualifying serious health condition requiring the employee’s care.

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 three or more activities of daily living or instrumental activities of daily living.

Activities of daily living may include:

• Grooming and personal hygiene.
• Bathing.
• Dressing.
• Eating.
• Instrumental activities of daily living may include:
• Cooking and meal preparation.
• Cleaning.
• Shopping.
• Transportation or use of public transportation.
• Paying bills.
• Maintaining a residence.
• Using a telephone or other communication device.
• Managing medication.
• Obtaining essential goods or services.

The determination is individualized. The city should consider the adult child’s actual functioning and need for active assistance or supervision when the leave begins, rather than relying only on a diagnosis or general assumptions about a condition.

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 that involves:

• Inpatient care, such as an overnight stay in a hospital, hospice, or residential medical-care facility; or
• Continuing treatment by a health-care provider.
• The employee must be needed to care for the adult child. Care can include physical care, psychological comfort and reassurance, transportation to medical appointments, arranging changes in care, assisting with treatment, or substituting for another person who normally provides care.
• The care need must relate to the adult child’s serious health condition. An employee may be eligible for intermittent leave or a reduced leave schedule when medically necessary.

Examples
The following circumstances may qualify when all legal requirements are met:

• An adult child with Down syndrome, autism, an intellectual disability, or another developmental disability who needs active assistance with at least three daily-living activities and has a serious health condition requiring parental care.
• An adult child with a traumatic brain injury after a motor-vehicle accident who is temporarily unable to bathe, dress, eat, manage medication, travel independently, or handle essential daily tasks.
• An adult child with cancer, paralysis, multiple sclerosis, a serious mental-health condition, or another qualifying condition that substantially limits major life activities, creates an inability to provide self-care, and requires the parent’s care.
• An adult child with an episodic condition who is normally independent but is incapable of self-care during a flare-up or active period and needs care for a serious health condition.

A condition does not need to be lifelong or permanently disabling. A temporary injury or illness can qualify if it satisfies the ADA-disability, incapacity-for-self-care, serious-health-condition, and need-for-care requirements when leave begins.

Pregnancy and adult-child leave
Pregnancy-related incapacity can be a serious health condition under the FMLA. However, for a parent to take FMLA leave to care for an adult pregnant child, the adult child must also meet the special adult-child requirements: an ADA disability, incapacity of self-care because of that disability, a serious health condition, and a need for parental care.

Pregnancy alone does not automatically establish that an adult child has an ADA disability or is incapable of self-care. The city should evaluate the specific medical condition, functional limitations, care needs, and supporting certification.

City steps
When an employee requests leave to care for an adult child, the city should:

• Confirm that the employee is eligible for FMLA leave and that the city is a covered employer.
• Provide the required FMLA eligibility, rights-and-responsibilities, and designation notices.
• Request medical certification when appropriate.
• Ensure the certification addresses the adult child’s serious health condition, ADA disability, inability to provide self-care, and the employee’s need to provide care.
• Assess whether leave is continuous, intermittent, or on a reduced schedule and whether intermittent leave is medically necessary.
• Keep medical certification and related information confidential and separate from the employee’s regular personnel file.
• Coordinate FMLA leave with city leave policies, paid-leave substitution rules, benefits administration, and any other applicable legal rights.

HR should not demand a detailed diagnosis or unnecessary family medical information. The city may seek certification sufficient to determine whether the statutory requirements are met.

Key authority

• Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.
• 29 C.F.R. § 825.122, defining “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 an adult child.
• Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.