The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was signed into law on September 25, 2008 and significantly broadened the scope of the term “disability” under the ADA. Because the FMLA’s definition of an adult “son or daughter” relies upon the ADA’s definition of disability as a mental or physical impairment that substantially limits one or more major life activities, the changes to the definitions of these terms in the ADAAA and its implementing regulations may affect who is determined to be a “son or daughter” 18 years of age or older under the FMLA.
In order for a parent, who is an eligible employee, to take FMLA leave to care for a son or daughter 18 years of age or older, the adult child must be incapable of self-care due to a mental or physical disability, i.e., an impairment that “substantially limits” one or more of the individual’s “major life activities.” The ADAAA broadened the definition of “major life activities” under the ADA to include, among other things, the “operation of a major bodily function” such as those of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems.
The ADAAA also clarified that the use of mitigating measures to ameliorate the effects of an impairment, other than ordinary eyeglasses or contact lenses, may not be considered in determining whether the individual is substantially limited in a major life activity. It further stated that an impairment that is episodic or in remission is a disability if it would, when active, substantially limit a major life activity.
The ADAAA’s expanded definition of the term “disability” will enable more eligible employees to take FMLA-protected leave to care for their adult sons and daughters with disabilities provided that such adult children are incapable of self-care due to their disability and their parents are needed to care for them due to their serious health condition.
October 2018
Tags: Use of FMLA leave to care for a son or daughter age 18 or older