FMLA leave for sibling care? It’s possible — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

FMLA leave for sibling care? It’s possible

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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, a U.S. Department of Labor (DOL) ruling last year that clarified 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. In such cases, the child in question must be under age 18 or, if over 18, be incapable of self-care because of a mental or physical 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. That 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 next of kin to the employee.

Online resource: Read the two-page DOL Fact Sheet #28B, FMLA Leave on the basis of an “in loco parentis” relationship, at

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BMD Editors September 1, 2011 at 1:07 pm

The FMLA is so confusing!


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