FMLA leave for sibling care? It’s possible

Eligible employees can take up to 12 weeks of job-protected FMLA leave each year to care for their spouse, child or parent who has a serious health condition. The law says nothing about FMLA leave to care for a sick sibling.

However, the U.S. Department of Labor (DOL) has clarified that the definition of “son or daughter” under the FMLA opens up the potential for employees to take leave to care for siblings or other family and nonfamily members. If the employee is serving in the parental role for a sick child, he or she may be eligible.

The definition of “son or daughter” for FMLA purposes includes a child of a person standing in loco parentis (it means “in place of a parent”). In such cases, the child in question must be under age 18 or, if 18 or over, be incapable of self-care because of a disability.

The DOL says people who are in loco parentis include those with “day-to-day responsibility to care for and financially support the child.” That can be the case even if there’s no biological or legal relationship between the two (e.g., an employee caring for an unmarried partner’s child).

Courts have indicated some factors to be considered in determining in loco parentis status:

• The age of the child
• The degree to which the child is dependent on the person
• The amount of financial support, if any, provided
• The extent to which duties associated with parenthood are exercised.

Important point: The fact that a child has a biological parent in the home—or has both a mother and father—does not automatically prevent an employee from standing in loco parentis to that child.

The FMLA doesn’t restrict the number of “parents” a child may have.

Note: DOL regulations do expressly allow sibling-care leave in the case of a military caregiver. The law allows 26 weeks of leave to care for a covered service member (with a serious injury) who is the spouse, son, daughter, parent or—importantly here—next of kin to the employee.

Read the two-page Department of Labor Fact Sheet #28B, FMLA Leave on the basis of an in loco parentis relationship, at www.dol.gov/whd/regs/compliance/whdfs28B.pdf.