February 26, 2013

Recent FMLA Updates: Changes to the FMLA Notice Poster and a DOL Interpretation Addressing FMLA-Protected Leave for Caring for Adult Children

FMLA Notice Poster The Family and Medical Leave Act (FMLA) notice poster has been revised (revised poster available here). It is required to be posted/ distributed by March 8, 2013. The revised poster reflects recent FMLA regulations issued by the Department of Labor. Notable changes include an expansion of FMLA military leave coverage to include both current servicemembers and those discharged within the past five years. In addition, the revised FMLA poster removed the definition of "serious injury or illness" from the military family leave section and replaced it with an emboldened notice that the FMLA definitions of "serious injury or illness" for current servicemembers and veterans are separate and distinct from the FMLA definition of "serious health condition."


FMLA-Protected Leave for Caring for Adult Children The Wage and Hour Division of the U.S. Department of Labor recently issued Administrator's Interpretation No. 2013-1 (full interpretation available here; fact sheet available here; and FAQs available here) clarifying the definition of "son or daughter" under Section 101(12) of the FMLA with regard to adult children. Generally, the FMLA entitles an eligible employee to take up to 12 work weeks of unpaid, job-protected leave during a 12-month period in order to care for a son or daughter with a serious health condition. A child under 18 years old qualifies as a "son or daughter" under the FMLA whether or not the child has a disability, so long as the employee shows a need to care for the child due to the child's serious health condition. However, in order for an adult child (18 years of age or older) to qualify as a "son or daughter" for whom an employee can use FMLA leave, the adult son or daughter must:


                (1) have a mental or physical disability under the ADA's definition;

                (2) be incapable of self-care due to that disability;

                (3) have a serious health condition; and

                (4) be in need of care due to the serious health condition.


The interpretation goes on to provide specific points of clarification outlined below.


1. The age of the onset of disability is irrelevant. An otherwise qualifying adult son or daughter may have developed his or her disability at any time, before or after the child turned 18, and still have his or her parent qualify to provide FMLA-protected care.


2. The FMLA uses the ADA's definition of "disability." The interpretation clarifies that amendments to the ADA's definition of disability contained in the ADAAA apply to the FMLA. Therefore, the ADAAA's recent changes to the ADA's definition of disability apply to the FMLA's definition.  


3. Other FMLA requirements (i.e., the adult child must be incapable of self-care, must have a serious health condition, and that the parent must be "needed to care" for the child) still apply and are still governed by existing FMLA regulations.


4. The interpretation does not apply to an employee's ability to take FMLA military leave for a son or daughter injured in military service. However, the interpretation clarifies that the parent of an injured servicemember may take FMLA leave in subsequent years (because FMLA military leave provides for leave only in a single 12-month period) so long as all of the FMLA requirements are met.



About Ahlers and Cooney's Client Alerts

Our Client Alerts are intended to provide occasional general comments on new developments in Federal and State law and regulations which we believe might be of interest to our clients. The Client Alerts should not be considered opinions of Ahlers & Cooney, P.C., and are not intended to provide legal advice as a substitute for seeking professional counsel. Readers should not under any circumstance act upon the information in this publication without seeking specific professional counsel. Ahlers & Cooney will be pleased to provide additional details regarding any article upon request. Additional copies of this Client Alert may be obtained by contacting any attorney in the Firm or by visiting the Firm's website at www.ahlerslaw.com.


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Pellegrin, Nicholas


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