Skip to Main Content

elaws - employment laws assistance for workers and small businesses

- Family and Medical Leave Act Advisor

Reasons for Leave - Definition of a Qualifying Child

An eligible employee may take FMLA leave to care for a biological, adopted, or foster child, a stepchild, a legal ward, or a child to whom the employee stands in loco parentis, who is 18 years of age or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.

First, it is important to determine whether the child has a mental or physical disability. The FMLA uses the Equal Employment Opportunity Commission’s regulations under the Americans with Disabilities Act (ADA) to determine if a condition is a disability. Changes to the ADA in 2008 expanded the number of conditions that meet this definition, making it more inclusive and providing broader coverage.

Under the FMLA, a disability is a mental or physical impairment that substantially limits one or more of the major life activities of an individual. Major life activities include, but are not limited to, activities such as caring for oneself, performing manual tasks, seeing, eating, standing, reaching, breathing, communicating, and interacting with others, as well as major bodily functions, such as functions of the brain or immune system, or normal cell growth. Use of medical supplies or medications to lessen the effects of the disability, other than the use of ordinary eyeglasses or contact lenses, may not be considered in determining if a disability exists. Other aids that should not be considered include hearing aids, prosthetics, and assistive technology. While pregnancy is not itself a disability, pregnancy-related impairments, such as gestational diabetes, may be disabilities if they substantially limit a major life activity.

Conditions that are episodic or in remission are considered disabilities if the condition would substantially limit a major life activity when active. For example, cancer in remission or conditions with episodic periods of illness, such as multiple sclerosis, asthma, epilepsy, diabetes, or post-traumatic stress disorder (PTSD), would be considered disabilities even when symptoms of the condition are not currently manifesting.

The disability of the son or daughter does not have to have occurred or been diagnosed prior to the age of 18. The onset of a disability may occur at any age.

Does the child have a mental or physical disability?

Return to Reasons for Leave.

For more information on this aspect of the FMLA, see the FMLA regulations: § 825.122 and Fact Sheet 28K: "Son or Daughter" 18 years of age or older under the Family and Medical Leave Act