Employment Law Blog

News, trends and analysis in employment law and HR

Jul 20, 2011

Can an employee qualify for FMLA leave for an adult child?

Q&ALeave Laws 

Q: My employee has requested time off under the federal Family and Medical Leave Act (FMLA) to care for her 40-year old child. We don’t think she qualifies because her child is over the age of eighteen. Are we right?

A: You’ll need more information to answer that question correctly. The FMLA regulations specifically state that an employee can only take leave to care for a child who is under the age of eighteen. But there’s a huge qualifier at the end of that section, which says that leave can be taken for a child who is eighteen years or older if they are “incapable of self-care because of a mental or physical disability.” Here’s where the confusion sets in: the FMLA regulations refer back to the federal Americans with Disabilities Act (ADA) to define when an adult child has a mental or physical disability. And, because the ADA provides a very broad definition of disability, the qualifier potentially swallows the rule that employees can only take leave to care for a child under the age of eighteen. So, the employee may qualify for FMLA leave to care for their 40-year old child, if the child has a condition that qualifies as a disability under the ADA.

Here’s an example from a recent court case: An employee’s adult child was in a car accident, breaking both of her femurs and rendering her unable to walk for several months. The employee took a week off of work to assist her child and was subsequently fired. Her employer argued that the child’s inability to walk did not last very long so it didn’t qualify as a disability under the ADA, and thus the FMLA did not cover the employee's time off to care for her adult daughter. But a Texas district court disagreed, stating that even temporary conditions lasting only a few months can meet the ADA’s definition of disability. So the case is being passed on to a jury to determine whether the daughter’s particular condition qualified as a disability under the ADA and, if the answer is yes, then the employee was entitled to FMLA leave (Patton v. Ecardio Diagnostics LLC, SD Tex, June 2011).
    
Tips: There are no easy answers when it comes to applying the FMLA and ADA to a particular situation, but don’t assume that an employee can’t take FMLA leave for an adult child. Because of the expanded definition of disability under the ADA, it’s very likely that an employee will qualify for such leave. Review our Legal Guide, “ADA and FMLA Overlap” (3593) and call your Vigilant representative when an issue arises.

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