While most employers no doubt have dealt with an employee's FMLA entitlement to leave to care for a minor child with a serious health condition, not all employers have had occasion to consider when FMLA obligations arise with regard to adult children.

The FMLA regulations do not address the issue of whether the serious health condition must occur before the employee's child turns 18 in order to determine whether the individual is a "son or daughter" entitling the employee to leave under the FMLA. The U.S. Department of Labor's Wage and Hour Division ("WHD") had suggested in some of its past opinions that the serious health condition must have existed prior to the child's 18th birthday, and in others, that the date of onset is irrelevant.

On January 14, 2013, the WHD clarified this issue with its guidance in Administrator's Interpretation No. 2013-1 (the "Guidance"), the first of 2013 for the WHD. The WHD noted that Congress has recognized that a disabled child's need for parental care may not end when the child reaches the age of 18 and that adult children who are unable to care for themselves because of a disability have "the same compelling need for parental care" as children under the age of 18. The WHD made the determination that the child's age at the onset of a disability is irrelevant in determining whether an individual is considered a "son or daughter" entitling the employee to leave under the FMLA.

The Guidance clarifies that an eligible employee is entitled to take FMLA leave to care for an adult child under certain circumstances, where each of these four factors exist:

• The adult child has an "disability" as defined under the Americans with Disabilities Act ("ADA");
• The adult child is incapable of self-care due to a disability (i.e., where the adult child requires active assistance or supervision to provide daily self-care in three or more of the 'activities of daily living' ("ADLs") (including such things as caring appropriately for one's grooming and hygiene, bathing, dressing and eating) or 'instrumental activities of daily living' ("IADLs") (including such things as cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, and using the post office);
• The adult child has a serious health condition under the FMLA (an illness, injury, impairment, or physical or mental impairment that involves inpatient care or continuing treatment by a health care provider); and
• The parent is "needed to care" for the adult child due to the serious health condition.

Assuming the factors above are met, an eligible employee may use FMLA leave to care for an adult child, whether the child's health condition is the result of an old or pre-existing condition (such as a birth defect or childhood illness) or a recent illness or injury, such as a car accident.

The Guidance also clarifies and expands the FMLA options for parents of wounded military personnel. Under the military caregiver provision of the FMLA, the parent of a covered service member injured during active duty is entitled to up to 26 workweeks of leave in a single 12-month period, if all other requirements are met. However, once the 12-month period is over, the employee-parent will have to then qualify for regular FMLA in order to care for their adult child.

Employers should consider reviewing their FMLA policies and procedures as they relate to the wide range of conditions and circumstances that may trigger FMLA leave to care for adult children.