I am the youngest of three girls. My older sisters, pictured from right to left with me on the furthest left side of the featured photo, often refer to me as their “older little sister." I think that’s a compliment — or at least they say it is. One day, in the hopefully very distant future, we will be taking care of each other in some way.
Thankfully, more employees are aware of their option to use the Family and Medical Leave Act (FMLA) — which offers job protection — when they need to take time off of work to take care of a parent or their child. The FMLA allows eligible employees to take up to 12 work weeks of unpaid leave during any 12-month period to attend to the serious health condition of themselves or their parent, spouse, or child. In order to be eligible for FMLA leave, an employee must be with a company at least 12 months, work at least 1,250 hours during that year-long period, and work at a location where the company employs 50 or more employees within 75 miles.
Many may assume that they are able to use this benefit as a sibling, especially if you are the only person that your sibling has for support. This is a reasonable expectation, but there have been a few court cases that have not favored the side of the caregiving sibling but instead state that the FMLA does not clearly include provision for siblings. The decision is often deferred to the employer.
Here are a few cases that have addressed this issue:
- Smith v. Women's Health: “[FMLA qualification is] a matter of employer’s discretion.”
- Gude v. Rockford Center: "Caring for one's sibling is not a guaranteed right under the FMLA."
- In Crawford v. Creative Cost Control, the court found that the employer was required to provide FMLA to their employee, who they had initially terminated for job abandonment, when he attempted to use the FMLA for his brother. They found that he provided the necessary care that deemed him in loco parentis.
Here's what the Department of Labor (DOL) has to say regarding the FMLA in loco parentis:
In loco parentis refers to a relationship in which a person puts himself or herself in the situation of a parent by assuming and discharging the obligations of a parent to a child. The in loco parentis relationship exists when an individual intends to take on the role of a parent to a child who is under 18 or 18 years of age or older and incapable of self-care because of a mental or physical disability. Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements.
See the noted “such as siblings” followed by “as long as the relative satisfies the in loco parentis requirement.” This means that if you are seeking this unpaid leave from your employer, you must prove that your role fits the requirements. How? The DOL does not specify a clear guideline of requirements; instead stating that the applicant must present facts that the employer will review to determine if the employee meets the requirements of in loco parentis.
Your utilization of the FMLA for your sibling is ultimately in the hands of your employer, and their decision is heavily reliant on the facts that you present. What facts?
Here are some ideas to consider:
- The severity of your siblings mental or physical needs.
- The detailed ways in which you physically assist your sibling (e.g. wound care, toileting, medication, mobility assist, dressing, bathing, etc.).
- The physical environment/housing that they require (if they need to move in with you versus remain on their own).
- Their safety risk without your presence and assistance for self-care and mobility.
- Documentation from their physician or recent hospital stay that may reflect their deficits, illness, and risk factors.
You will need to describe your role in caring for your sibling in the same manner you would consider caring for a child or your aging parents. Defining your role as imperative for the care of your sibling, with clarity.
Remember that the FMLA was created with the intention of supporting caregivers to care for the ones that once cared for them (parents) and for children (newborn or those facing a medical crisis). The FMLA does not clearly define siblings anywhere in the initial construct. The U.S. Department of Labor had to make a clarification in 2015 after years of questions and requests. And, still, the answer is quite vague.
Bottom line: do your research, get your facts, and make an effective FMLA request to your employer if you are in need of it for your sibling.
For more guidance, support and inspiration you may want to check out Sibling Leadership Network.
UPDATED AUGUST 2022