The DOL published Administrator’s Interpretation No. 2013-1, which clarifies the expansion of FMLA. The DOL explained that the ADA Amendments Act (“ADAAA”) expanded more than just employer liability for disability claims, but also expanded the scope of FMLA coverage for children.
The DOL clarified the following.
- The DOL adopted the ADA’s definition of disability to define “mental or physical disability” for purposes of defining a son or daughter 18 years or older. See 58 Fed. Reg. 31794, 31799 (June 4, 1993). The 2008 FMLA Final Rule explicitly adopts the ADAAA’s changes to the ADA’s definition of disability;
- The definition of a “son or daughter” is defined by the definition of a disability under the ADAAA, which “shall be construed in favor of broad coverage;”
- The determination of whether an adult son or daughter is incapable of self-care under the FMLA focuses on whether the individual currently needs active assistance or supervision in performing three or more activities of daily living (or ADLs) including “grooming, hygiene, bathing, dressing and eating;” or instrumental activities of daily living (or IADLs) including “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, and using a post-office, etc.;”
- A serious health condition is an illness, injury impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider; and
- For a parent to take FMLA leave to care for an adult son or daughter, the parent must be “needed to care” for that son or daughter due to the serious health condition.
In the Administrative opinion, the DOL provides examples.
via Department of Labor Clarifies When an Employee May Take FMLA Leave to Care for Adult Children | Orrick – Global Employment Law Group – JDSupra.
Teed v. Thomas & Betts Power Solutions, LLC (7th Cir. 2013) held that a buyer of a company’s assets can’t rely on state law to keep a seller’s violations of the Fair Labor Standards Act (FLSA) from transferring to the buyer of the Seller company’s assets. This standard has been previously applied to the LMRA, NLRA, Title VII, ADEA, and FMLA.
The Seventh Circuit explained that federal labor law claims are governed by federal common law, not state law. Further, the court explained that employees do not have the power to stop an owner from selling the company. Therefore, the buyer (successor) is stuck with the seller’s (prior owner) liability regardless of what the contract states.
To determine whether successor liability will apply, the Seventh Circuit considered the following multi-part balancing test:
- Whether the successor had notice of the pending law suit;
- Whether the predecessor would have been able to provide the relief sought in the lawsuit before the sale;
- Whether the predecessor could have provided relief after the sale;
- Whether the successor can provide the relief sought in the suit (if not successor liability is a phantom); and
- Whether there is continuity between the operations and work force of the predecessor and the successor – which favors successor liability because nothing really has changed.
via Buyer Beware of Successor Liability For FLSA Claims | Sands Anderson PC – JDSupra.
On January 14, 2013, The Department of Labor issued a new interpretation that clarifies its position on the ability of employees to take leave under the FMLA to care for an adult child who has a disabling medical condition. You can read the DOL’s guidance for adult children here.
The FMLA allows employees to take leave to care for a son or daughter with a serious health condition. However, the scope of allowable leave narrows once an employee’s son or daughter reaches 18 years old. At that point, a parent is entitled to take FMLA leave when all four of the following occur:
(1) the adult child has a disability as defined by the ADA;
(2) the child is incapable of self-care due to that disability;
(3) the child has a serious health condition; and
(4) the child is in need of care due to the serious health condition.
Prior to this interpretation, there was some question as to whether the adult child’s disability must have developed before the child reached 18 years of age for the parent to be eligible for FMLA leave. The Department of Labor has now clarified that the age of onset of the disability is immaterial so long as the child at issue has a disability under the ADA.
This interpretation reflects the impact of the ADAAA’s expansion of the definition of “disability” on the FMLA and will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities.
via New Department of Labor Interpretation on FMLA Leave for Adult Children | Baker, Donelson, Bearman, Caldwell & Berkowitz, PC – JDSupra.
The U.S. Department of Labor released a new Employee Guide to the Family and Medical Leave Act on June 27, 2012. The new guide, available online and in print, includes easy-to-follow and informative charts that map out the FMLA leave process and a summary of how coverage and eligibility are determined.
View the Slideshow
Listen to the Archived Webinar
Download the FMLA Guide
via Adjunct Law Prof Blog: US DOL Releases New Family and Medical Leave Guide.