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Department of Labor Lists Considerations for Adult Child Care FMLA Leave Requests

The U.S. Department of Labor has issued an “administrator's interpretation” of factors an employer must consider when an employee requests leave to care for an adult child under the Family and Medical Leave Act.

January 16, 2013
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Related Topics: Family and Medical Leave Act, Disabilities, Discrimination and EEOC Compliance, Policies and Procedures, Legal, Latest News
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The U.S. Department of Labor has issued an "administrator's interpretation" of factors an employer must consider when an employee requests leave to care for an adult child under the Family and Medical Leave Act, including the impact of the Americans with Disabilities Act Amendments Act of 2008.

Jeff Nowak, a partner with law firm Franczek Radelet P.C. in Chicago, said the Labor Department guidance issued Jan. 15 "takes a broad view of disability in the same vein that the (Equal Employment Opportunity Commission) does under the ADA Amendments Act" which "has been an open question" since the law's passage.

It means "we're going to find the DOL approves, or takes the position, that a far greater number of instances should be covered by the FMLA," he said. "I think employers will continue to struggle over how to interpret the disability prong of this test."

The EEOC's final regulations for the ADA Amendments Act, which were issued in 2011, expanded what qualifies as a disability and opened the door to increased claims against employers, according to experts.

The Labor Department's administrative guidance states that a son or daughter who is 18 or older "must have a mental or physical disability and be incapable of self-care because of that disability." A disability, as interpreted by the EEOC, is one that "substantially limits a major life activity," says the guidance.

It states that "pursuant to the clear language of the (ADA Amendments Act), the definition of disability 'shall be construed in favor of broad coverage' and the EEOC has made clear that the issue of disability 'should not demand extensive analysis.' "

The guidance states while the FMLA regulations are not explicit on this point, it is irrelevant as to whether the disability occurs before or after the son or daughter turns 18.

The Labor Department also issued a fact sheet and questions and answers on the administrative guidance.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. Comment below or email editors@workforce.com.

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