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Print articleThe Employer, A Newsletter Prepared By Waller's Labor and Employment Group (Vol. 2, Issue 1)
March, 2013 -
The Family and Medical Leave Act (FMLA) is celebrating its 20th anniversary this year and the Department of Labor (DOL) appears determined to make it a memorable one. On January 14, 2013, the DOL issued an official administrative interpretation regarding FMLA leave to care for an adult son or daughter with a serious health condition who is incapable of self-care because of a physical or mental disability.
The DOL clarified that the child’s age at the onset of the disability is irrelevant and, in fact, onset may occur after the age of 18. It further clarified that whether a child has a physical or mental disability is defined by the expansive definition of “disability” set forth in the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The DOL stated that it will follow the ADAAA’s regulations and construe the definition of disability “in favor of broad coverage.” The DOL noted that many impairments will satisfy both the ADAAA’s definition of disability and the FMLA’s definition of serious health condition. The interpretation emphasized that whether an adult child is “incapable of self-care” is a fact specific inquiry, as is the question of whether a parent is “needed to care” for the adult child.
The DOL specifically stated that the phrase “needed to care” includes providing psychological comfort and reassurance that would be beneficial to the child. As a practical matter, this new DOL guidance means that many more employees will be entitled to take FMLA leave to care for their adult children. Employers should expect an uptick in these requests and train their personnel accordingly.
On February 5, 2013, less than a month after issuing its interpretive guidance, the DOL published new FMLA regulations which will take effect March 8, 2013. These regulations implement a series of recent changes to the FMLA regarding military leave and airline flight crews. The regulations also clarify the DOL’s position concerning the calculation of intermittent leave and remind employers of their obligation to comply with the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA). The most significant changes in the regulations are summarized below.
