Adult Children Are Covered by the FMLA Only if Disabled Within Meaning of ADA, Says Sixth Circuit

In Novak v. MetroHealth Med. Center, No. 06-3036, 2007 Fed. App. 0398P (6th Cir. Sept. 28, 2007), the Sixth Circuit found that an employee did not have the right to FMLA leave to care for an adult child where the child was not disabled within the meaning of the FMLA.  The adult child suffered from a temporary bout of postpartum depression. 

The FMLA authorizes leave to care for a child 18 years of age or older only if the child suffers from a serious health condition and is "incapable of self care because of a mental or psychological disability.  The FMLA applies defines "disability" by cross reference to regulations implementing the Americans with Disabilities Act (ADA).  Under EEOC Interpretative Guidance, temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are generally not disabilities. Relying on the EEOC Interpretative Guidance, the court found that the week or two that the adult child complained they needed help due to depression failed to establish that she had a disability.

In so holding, the court declined to express an opinion on the decision of the First Circuit in Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001).  There, the Navarro court declared that the EEOC's interpretive guidance for the ADA did not apply to the FMLA.  The Sixth Circuit went on to find that its decision was consistent with Navarro because, based on the facts and not the EEOC interpretive guidance, the condition was of such short duration with no last effects that it did not rise to the level of a disability for purposes of the FMLA.

Comment:  The decision technically splits the circuits on the application of the EEOC ADA interpretive guidance excluding short term infirmities from the definition of a "disability" for purposes of FMLA leave to care for an adult child.  Novak finds that the interpretative guidance applies.  Navarro says that it does not.  Both cases, however, apply the factors cited in the EEOC interpretive guidance to determine if the adult child is disabled within the meaning of the FMLA. Given the split in the circuits, this is probably the best course of action to determine if an employee can take FMLA leave to care for an adult child