May an employee take FMLA leave to care for an adult child (18 years or older)?

The  answer depends on whether the child, age 18 or older, is, as stated in the Family Medical and Leave Act (FMLA) regulation §825.122, incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence. The regulation further states:

1. Incapable of self-care means that the individual 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 adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.
2. Physical or mental disability means a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Regulations at 29 CFR 1630.2(h), (i), and (j), issued by the Equal Employment Opportunity Commission under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define these terms.

The disability of the son or daughter does not need to have occurred or been diagnosed prior to the age of 18. The onset of a disability may occur at any age for purposes of the definition of a son or daughter under the FMLA.

How can an employer determine if the adult child is incapable of self-care because of a mental or physical disability? Employers may consider developing administrative tools. For example, they can ask the employee, in writing, for medical documentation regarding the Americans with Disabilities Act (ADA) physical or mental disabilities standards. Employers should make this part of the process before making a decision regarding FMLA leave to care for an adult child.

The FMLA specifically provides leave for covered employees to care for an adult child who is a member of the military. Leave because of a qualifying exigency (FMLA regulation §825.126(3)) enables a parent to take leave to assist a covered service member with activities such as short-notice deployment preparation of seven calendar days or less, attending military events and related activities, and finding alternative child care for the service member's child. A review of the regulation provides additional activities that qualify for exigency leave.

Leave to care for a covered service member with a serious injury or illness (FMLA regulation §825.127(d)(1) ) enables an eligible employee to take leave for an adult child who is a service member and has a serious illness or injury (as defined in the regulation). This caregiver leave for wounded or ill service members provides up to 26 workweeks of unpaid leave for the eligible employee during a 12-month period.

Due to the complexity of issues surrounding FMLA leave to care for an adult child, employers are advised to seek legal guidance in establishing administrative procedures and making individual determination decisions.

Related Resources

Questions and Answers concerning the use of FMLA leave to care for a son or daughter age 18 or older

Fact Sheet #28K: "Son or Daughter" 18 years of age or older under the Family and Medical Leave Act