The FMLA entitles eligible employees to take a total of 12 workweeks of leave during any 12 month period to care for a son or daughter with a serious health condition. Son or daughter is defined as any biological, adopted, foster or stepchild, legal ward, or a child of a person standing in loco parentis who is: (1) under 18 years of age; and (2) 18 years of age or older and incapable of self-care because of a mental or physical disability. Does the FMLA apply if the child becomes disabled and incapable of self care after he or she turned 18?
While the FMLA and its regulations are silent on this issue the US Department of Labor’s Wage and Hour Division (WHD) clarifed it in a recent opinion. The WHD, relying on the legislative history of the FMLA, opined that the age that the child becomes disabled is irrelevant in determining whether the employee is entitled to leave to care for the child. As a result, employers must grant FMLA leave to eligible employees who need to care for a disabled adult child, regardless of when the child becomes disabled.