DOL Clarifies Leave Rights Under the FMLA

Employment Law Newsletter

Twenty years after its passage, most employers are aware that the Family and Medical Leave Act (FMLA) provides qualifying employees with up to 12 weeks of job-protected leave for varying circumstances. However, employers may not be aware that the U.S. Department of Labor recently issued new rules and an Interpretive Guidance that will likely expand the number of employees eligible for leave under the FMLA. Employer personnel responsible for handling leave requests must be aware of these developments to ensure proper administration of employee leave rights under the FMLA.

DOL Guidance Clarifies Leave Rights to Care for Adult Children: Among the circumstances where eligible employees may invoke FMLA rights is a leave to care for a son or daughter with a serious medical condition. The FMLA’s definition of “son or daughter” includes an child who is “incapable of self-care because of a mental or physical disability.” One of the unresolved issues under this definition was whether the age of the child when the disability began could be considered when making eligibility determinations for the parent. On January 14, 2013, the DOL issued interpretive guidelines clarifying that the age of the son or daughter at the onset of the disability is not relevant, and thus a qualifying parent is entitled to leave regardless of the age of the child or when the disability arose.

The guidelines further clarify that the adult son or daughter must meet the following four requirements for the parent to be eligible for FMLA leave:

  1. The adult child must have a “disability” defined as “a physical or mental impairment that substantially limits one or more of the major life activities,” consistent with the definition of a disability under the Americans with Disabilities Act (ADA). In addition, consistent with recent amendments to the ADA, the definition of “disability” must be construed broadly in favor of coverage.
  2. The disabled adult child must be “incapable of self-care” due to the disability, defined as requiring “active assistance or supervision to provide daily self-care in three or more “activities of daily living” or “instrumental activities of daily living,” which include grooming, hygiene, bathing, dressing, eating, cooking, cleaning, shopping, utilizing public transportation, paying bills, medication management and other similar activities.
  3. The disabled adult child must have a “serious health condition” that involves inpatient care or continuing treatment by a healthcare provider.
  4. The parent must be “needed to care” for the disabled adult child due to that serious health condition. “Needed to care” includes, for example, basic medical, hygiene or nutritional needs, transport to the doctor, or even psychological comfort and reassurance that would be beneficial to the adult child.

Employers should refer to the Interpretive Guidance available at for specific examples of when an employee would be and would not be eligible for FMLA leave to care for an adult child.

DOL’s Guidelines Clarify Leave to Care for Wounded Military Service Members: In addition to clarifying leave rights to care for a disabled adult child, the Interpretive Guidance clarifies military caregiver rights under the FMLA. Under the military caregiver provisions of the Act, the parent of a covered service member who sustains a serious illness or injury is entitled to up to 26 weeks of FMLA leave “in a single 12-month period.” However, the guidance acknowledges that the service member’s injuries may have an impact that lasts beyond the “single 12-month period” and makes it clear that when the parent exhausts the 26 weeks of military caregiver leave entitlement, the parent is eligible for an additional 12 weeks of traditional FMLA leave in subsequent years so long as all of the other requirements for leave to care for an adult child are met. Employers should refer to the Interpretive Guidance for specific examples of the interplay between military caregiver leave and traditional FMLA leave when a parent seeks leave to care for an ill or injured service member.

DOL Issues Final Rule Regarding Military Caregiver and Exigency Leave: In addition to the Interpretive Guidance impacting military caregiver leave discussed above, on February 5, 2013, the DOL issued its final rule implementing the amendments to the FMLA regarding exigency and military caregiver leave made by the National Defense Authorization Act (NDAA). The two key provisions of the NDAA expanded military FMLA are as follows:

  • Military Caregiver Leave: military caregiver leave is expanded to include eligible employees whose family members are recent veterans with a serious injury or illness. Prior to the amendments, leave was only available to care for a service member with a serious injury or illness. The final rule also expands the definition of serious conditions to include conditions i) that do not arise until the after the service member has left military service, or ii) that existed prior to the military service but were aggravated by service in the line of duty.
  • Exigency Leave: qualifying exigency leave is expanded to include eligible employees with a family member in any branch of the Armed Forces who desire leave to tend to exigencies that arise from the family member’s deployment. Prior to the amendment exigency leave was limited to those with family members in the National Guard and Reserves.

In addition, the final rule clarifies that exigency leave can be utilized to tend to such matters as financial, legal or child care issues caused by the family member’s deployment, as well as to attend certain military events, to spend time with the family member during rest and recuperation leave (now extended from 5 to 15 days), and other exigencies.

Employers should review the final rule available at for further information about these and other changes when implementing military caregiver and exigency leaves of absence.

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