I love my brother dearly. I love my sister just as much.
And whenever we near the end of life's journey (a long time from now, of course), I'll be there to care for them. And they, for me, despite the many piledrivers I inflicted upon my younger brother when we both were wee lads and pretended to be WWF wrestling stars.
I will have to care for them, however, without the protection of the FMLA. After all, the law makes clear that I can take job-protected leave from work only to care for my parents, spouse and children. It says nothing about siblings, which means they aren't covered.
Given the clarity of the FMLA, why then are clients increasingly asking me whether their employees can take FMLA leave to care for a sibling?
Is the DOL to Blame?
Me thinks the groundswell of inquiries on this topic has something to do with the Department of Labor. In 2015, the DOL issued a fact sheet explaining that an employee would be entitled to FMLA leave to care for a child under the same circumstances as a biological or legal parent so long as the employee has assumed parental responsibilities for a child. The DOL explained as follows:
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... 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. (My emphasis on the term "siblings," not the DOL's.)
The DOL didn't stop there. The agency also issued FAQs which, among other things, answered the question: "I am a caregiver for my brother who is not able to take care of himself. Can I take FMLA leave for his care?:" The DOL curiously responded as follows:
Maybe. FMLA leave to care for a relative is generally limited to caring for a spouse, son, daughter or parent. An eligible employee standing in loco parentis to a sibling who is under 18, or who is 18 years of age or older and incapable of self-care because of a mental or physical disability, may take leave to care for the sibling, if the sibling has an FMLA-qualifying serious health condition.
Sibling advocacy groups have been quick to use these simple one-liners above as their golden ticket for employees to take FMLA leave to care for their sibling(s). I don't blame them; I would, too.
But let's tap the brake for a moment.
Courts Don't Agree with the DOL . . . So Far
As an initial matter, courts have quickly shut the door on employees seeking FMLA protection to care for their siblings:
- Smith v. Women's Healthcare: "[t]he care of a sibling…is not protected under either state or federal law;" therefore, care for a sister is "a matter of [an employer's] discretion."
- Gude v. Rockford Center: "caring for one's sibling is not a guaranteed right under the FMLA."
- Olejarz v. Shaler Twp.: "the provisions of the FMLA make clear that the Act does not extend to leave taken to care for a sibling."
Therefore, the courts still clearly need to be convinced that the FMLA somehow affords leave rights to employees to care for their siblings. They don't appear at all ready to enlarge the FMLA to cover brothers and sisters.
[SHRM members-only toolkit: Managing Family and Medical Leave]
But Isn't There Still an Opening for Siblings Under the FMLA?
A really tiny opening. Think eye of a needle.
Given that the specific language in the FMLA simply does not include siblings, the only sliver of hope for the employee is to shoehorn themselves into the category of "parent" (as alluded to by DOL above) by establishing that they stand in loco parentis to the adult sibling they are asking to care for.
First, the employee must show that the sibling is disabled under the ADA and incapable of self care, and that the employee will be providing physical or psychological care to the sibling. In many cases, this may not be too high a hurdle.
That's the easy part.
Second, the employee must show that they will or intend to have day-to-day responsibility and to financially support the sibling in the same way a parent would provide for a child. This is a big deal and tough to establish. (By the way, I don't buy into this whole DOL position that the employee need only provide daily care or financial support. This position is ripe for a legal challenge.)
Some common scenarios come to mind:
- When your employee, Susie, tells you she's going to California to care for her brother who is seriously ill, she hardly establishes in loco parentis when she tells you she'll "be back in one week" or even that she'll "return when he's feeling better." This not in loco parentis. Rather, is Susie moving to California permanently, or conversely, is the brother moving in with your employee? Now, we're getting warmer.
- When your employee, Johnny, tells you he has a "power of attorney" over her sibling, this doesn't establish, in itself, in loco parentis. So what if they have power of attorney? This hardly shows that they are providing day-to-day care or financially supporting the sibling.
Despite the employee-friendly language in an FAQ on the DOL website, FMLA leave for siblings should be a rare event indeed. When your employee seeks FMLA leave to care for a sibling, it's critical that they first meet the stringent criteria above. Don't settle for anything less.
Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where this article originally appeared. © 2017 Jeff Nowak. All rights reserved. Republished with permission.