FMLA makes one exception for leave to care for adult child

Q         When does leave to care for an adult child fall under the Family and Medical Leave Act (FMLA)?

A   Generally speaking, an employee may not take FMLA leave to care for a child who is 18 years of age or older, but there is one exception. An employee may take the leave to care for an adult child who is incapable of self-care because of a mental or physical disability.

“Incapable of self-care” means the adult child requires active assistance or supervision for three or more “activities of daily living” or “instrumental activities of daily living.” Activities of daily living include caring for one’s grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, transportation, maintaining a residence, and so on.

The definition of “disability” under the FMLA is adopted from the Americans with Disabilities Act (ADA) and means “a mental or physical impairment that substantially limits one or more of the major life activities” of the adult child. The FMLA further adopts the ADA’s broad interpretation of major life activities.

Both definitions (incapable of self-care and disability) must be met for an employee to take FMLA leave to care for an adult child.

Jason S. Ritchie is a partner with Ritchie Manning Kautz PLLP in Billings, Montana. You can reach him at jritchie@rmkfirm.com or 406-601-1400.