The Department of Labor’s recent issuance of new interpretation that clarifies whether an employee is entitled to take Family and Medical Leave Act (FMLA) leave to care for an adult child prompted The Oklahoman to speak with McAfee & Taft labor and employment attorney Kathy Neal for her insights into the issue.
Neal explained that the new interpretation permits an eligible employee to take up to 12 weeks of unpaid, job-protected leave per year to care for an adult son or daughter so long as the adult child has a disability as defined by the Americans with Disabilities Act (ADA) as amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA); the child is incapable of self-care due to that disability; the child has a serious health condition; and the child is in need of care due to that medical condition. Because the ADAAA expanded the definition of a disability, employers should be prepared to see an increase in the number of employee requests for FMLA leave to care for a disabled adult child.
While the law applies to adopted children as well as biological children, employees cannot take FMLA leave to care for sons-in-law or daughters-in-law, she said.
Neal notes that the required interplay of the ADAAA with the FMLA may make decision-making more complicated for employers in some instances. For practical purposes, though, many impairments will satisfy both the ADAAA’s expanded definition of disability and the FMLA’s definition of a serious health condition.
“Generally speaking, if an adult child of an employee is considered disabled and unable to care for his own basic medical, hygienic or nutritional needs, that employee should be considered ‘needed’ to provide care,” said Neal.
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