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While guidance is not “law,” it does provide insight for investigators, employees, employers, and courts to decide if FMLA is applicable. Have a disability as defined by the ADA In essence, the ADA defines disability as a physical or mental impairment that substantially limits one or more of the major life activities of an individual.

The disability can occur before or after the child’s 18th birthday – age of onset of the disability is not relevant to the application of FMLA. Be incapable of self-care because of a mental or physical disability FMLA regulations define “incapable of self-care because of mental or physical disability” as when an adult “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, and possibly medication management.

However, you should also be open and honest with your employer about your needs.

Often times, employers are willing to work with employees to address special concerns (such as needing to leave early to attend therapy appointments).

However, there are different regulations regarding FMLA leave to care for an adult child with disabilities.

The Department of Labor recently issued guidance about the availability of FMLA leave for an employee to care for an adult child with a disability.

To report a possible violation, you must contact the EEOC immediately.

The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition.

Keeping an open dialogue with your employer can go a long way toward improving the work-life balance required when caring for a child or adult with special needs.

Melissa Stuart is an associate attorney at Cohen & Malad, LLP in Indianapolis, Indiana. D., cum laude from Indiana University School of Law, 2011 and was Editor-in-Chief of the Indiana Health Law Review.

For example, the “association” provision makes it unlawful to refuse to hire an individual who has a child with a disability based on an assumption that the applicant will be away from work excessively or be otherwise unreliable, or denying an employee health care coverage available to others because of the disability of an employee’s dependent.

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