There is new information on the definition of “son or daughter” as it applies to an employee that wants to take leave under the Family and Medical Leave Act (“FMLA”) to care for a child with a disability who is 18 years of age or older.

The definition of “son or daughter” under § 101(12) of the FMLA has be updated so that the age of a son or daughter at the start of a disability is irrelevant in deciding a parent’s entitlement to FMLA leave. The FMLA permits qualifying employees to use up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition.

The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in the place of the parents, who is: (i) under 18 years of age; or (ii) 18 years of age or older and incapable of self-care due to a mental or physical disability.

The FMLA does not require that a biological or legal relationship exist between the  employee and the child: the definition of “son or daughter” includes a child of a person who has the day-to-day responsibilities to care for or financially support a child.

Disability
The FMLA regulations have adopted the Americans with Disabilities Act’s (ADA) definition of “disability,” which is as "a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC) to define “physical or mental disability.”

Self-care
The FMLA regulations define “incapable of self-care because of mental or physical disability” as when an adult son or daughter “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs).” Activities of daily living include grooming and hygiene, bathing, dressing, and eating, among others. Instrumental activities of daily living are things like cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, and using the post office.

Based on these definitions and conditions, a parent can take FMLA leave to care for a son or daughter who is 18 or older, if the adult son or daughter:

(1) has a disability as defined by the ADA;
(2) is incapable of self-care due to that disability;
(3) has a serious health condition; and
(4) is in need of care due to the serious health condition

An eligible employee is entitled to FMLA-protected leave to care for their adult son or daughter only when all four requirements are met.

Questions relative to the FMLA, the ADA, or another issue at your business? The Labor and Employment Practice Group of BoltNagi PC has years of experience and success with Virgin Islands labor and employment issues.  Please don’t hesitate to contact Ravinder S. Nagi, Chair of the BoltNagi PC Labor and Employment Practice Group today.