This is a hot-button issue right now. The Department of Labor (DOL) has issued some guidance in this area. As background, an employee is entitled to FMLA leave to care for a child with a serious health condition. But what is the definition of child? You can take leave to care for a child who is under the age of 18, but if that child is 18 or older, two things must be present. First, that person must have a disability as defined by the ADA. Second, the disability must render the adult child incapable of caring for himself or herself in three or more instrumental activities of daily living, such as grooming and hygiene, dressing oneself, eating, or using public transportation. Temporary conditions—such as a minor pregnancy-related condition, a bout with the flu, a broken bone, or routine surgery— typically do not result in a person being incapable of selfcare. However, plenty of other conditions—for example, an adult child with Down’s syndrome or a child who suffers from brain damage or a serious illness or was involved in a catastrophic accident— would likely be covered if the adult child is incapable of caring for himself or herself. This is further complicated by the ADAAA, under which the employee’s burden to establish a disability is much lower. The amended ADA allows for the possibility that a short-term impairment lasting 3–6 months could very well be considered a disability. In other words, it has become a whole lot easier to establish that an adult child has a disability. Arguably, it is easier now for an employee to take FMLA leave to care for an adult child. This has been confirmed most recently in an interpretative guidance that was issued by the DOL in January 2013, which reaffirmed that the DOL adopts the Equal Employment Opportunity Commission regulations on interpreting a disability. This means that more employees will be able to take FMLA leave to care for their adult children.
