Q: I am one of eight children. My father died many years ago. My mother is 87 years old and is lives in an assisted living community. She is not able to live independently. I am the oldest daughter. One of my brothers is 17 years younger than I am. He is battling a life-threatening condition. His health will likely deteriorate over the next few months. He is unmarried and does not have children. I would like to take some time to care for him toward the end of his life. I was told by my HR department that I do not qualify for an FMLA leave because he is my brother, not my child. This seems absurd to me. Can you help me better understand FMLA?
A: I am very sorry that you are facing such a sad and challenging situation with a loved one. Although the Family and Medical Leave Act (FMLA) provides job-protected time off to care for a seriously ill family member, it does not expressly provide an employee with the right to job-protected leave to care for a seriously ill sibling. However, it is not out of the question that an FMLA leave could apply to your situation.
I consulted Attorney Jeffrey A. Dretler, Partner in the Employment Law Practice Group at Prince Lobel Tye LLP. According to Dretler:
The FMLA is a federal law which grants eligible employees the right to take job-protected, unpaid leave (or to substitute paid leave if the employee has earned or accrued it), for up to a total of 12 workweeks in any 12-month period. An eligible employee is one who has been employed by the employer for at least a year, has worked at least 1,250 hours during the 12-month period immediately preceding the leave and works at a worksite where 50 or more employees are employed within 75 miles of that worksite. The FMLA authorizes the leave for any one of the following purposes:
(1) the birth of a son or daughter, and to care for the newborn child;
(2) the placement with the employee of a son or daughter for adoption or foster care;
(3) to care for the employee's spouse, son, daughter, or parent with a serious health condition;
(4) because of a serious health condition that makes the employee unable to perform the functions of the employee's job;
(5) because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on or called to active duty (e.g., to attend military events, for childcare and school activities, to make financial and legal arrangements, for counseling or to spend time with a covered military member who is on short-term rest and recuperation); and
(6) to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member.
The definition of “son or daughter” for purposes of FMLA leave taken for birth or adoption, or to care for a family member with a serious health condition (1, 2 or 3, above), includes a legal ward or a child of a person standing in ‘loco parentis,’ where the child is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability. Persons who are "in loco parentis" include those with day-to-day responsibilities to care for and financially support a child, even where there is no biological or legal relationship (e.g., employee caring for unmarried partner’s child or grandparent caring for grandchild). "In loco parentis" may also apply where an employee seeks leave to care for an "in loco parentis" parent who raised the employee as a child. Thus, if you were to be declared the legal guardian of your brother, or can demonstrate that you serve in an "in loco parentis" relationship to him, it is possible that you may qualify for FMLA leave to care for him. The fact that you are seventeen years older than your brother, that he is unmarried, without children, and your mother is unable to care for him, all weigh in favor of "in loco parentis" status. The only other circumstance where the FMLA could entitle an employee to a job-protected leave of absence to care for a sibling would be in circumstances where that sibling is a military service member injured in active duty and the employee is the service member’s next of kin.
Thus, while your HR Department is correct that the FMLA does not expressly grant an employee the right to job-protected leave to care for a seriously ill sibling, you might consider whether becoming his legal guardian or demonstrating “in loco parentis” status is possible. Even if you do not qualify for FMLA leave, you may consider talking to your manager or supervisor to explain your circumstances and request that the employer grant your request for a leave of absence even if you are ineligible for an FMLA leave. Some of my clients have personal leave policies where the employer will grant a leave of absence for a shorter period of time than FMLA provides, usually one month. Your employer is not obligated to grant your request, but depending on your company’s values, its current financial and business situation and your role within the company, it may be willing to grant your request.
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