From the Experts: Taking Medical Leave to Care for an Adult Child

We have an employee who is requesting a leave of absence to care for her adult daughter who has a serious health condition due to her pregnancy. She meets all other eligibility criteria, but does caring for her adult daughter qualify the employee to utilize both the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA) leave of absence?

This depends on whether the adult daughter is considered a qualifying family member under either CFRA and/or FMLA, as the criteria for each law must be analyzed separately.

California Family Rights Act

Effective Jan. 1, 2021, under CFRA, California expanded qualifying family members, including adding an adult child, and on Jan. 1, 2023, California further expanded the law to include a designated person, defined as any person related by blood to the employee or any person who is like family to the employee.

Currently, under CFRA, qualifying family members are those with a serious health condition and include:

• A child (including adult child);
• Spouse and domestic partner;
• Parent and parent-in-law;
• Grandparent and grandchild;
• Sibling; and
• A designated person.

In this situation, if the employee meets all other CFRA requirements, then the employee can take a leave of absence under CFRA to care for her adult daughter with a serious health condition (California Civil Rights Department, Expanded Family and Medical Leave in California).

Family and Medical Leave Act

Under FMLA, qualifying family members are a parent, child and spouse with a serious health condition. Child is defined as a:

• Biological, adopted or foster child;
• Stepchild;
• Legal ward; and
• Child of a person standing in loco parentis.

A “child” also must be either under the age of 18, or if 18 or older be incapable of self-care because of a mental or physical disability at the time that the FMLA leave begins.

Incapable of self-care under FMLA means that the adult child requires active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs). Under FMLA, examples of ADLs are caring appropriately for one’s grooming and hygiene, bathing, dressing and eating, and examples of IADLs are cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, and using a post office.

The employee can take an FMLA leave of absence to take care of her adult daughter if the child has a serious health condition, the parent is needed to care for the child due to a serious health condition, and the child is incapable of self-care because of a disability at the time when FMLA leave will begin (U.S. Department of Labor, Wage and Hour Division, Questions and Answers Concerning the Use of FMLA Leave to Care for a Son or Daughter Age 18 or Older).

Designating the Leave

In this example, the employer would designate the employee’s leave of absence as CFRA based on the medical certification of the employee’s daughter’s healthcare provider. If the medical certification provides that the employee’s daughter meets the requirements for FMLA as discussed above, then the employer would also designate the leave counts under FMLA, and both leaves would run concurrently.

If the employee is unable to meet the more stringent requirements of FMLA, then the employer would only designate that time as a CFRA-designated leave of absence, and the employee would still have remaining leave under FMLA to use later for a different qualifying reason.

Column based on questions asked by callers on the HRCalifornia Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of employment laws and Cal/OSHA regulations, not legal counsel for specific situations, submit your question at hrcalifornia.calchamber.com.