Q: On June 13, 2011, Pattie Sinacole wrote a column that I read very carefully. The column talked about the Family and Medical Leave Act and "in loco parentis." My sister has to go for treatments for a serious illness, once a week. She is unable to drive after her treatments. There are just two of us in our family. We live in the same house. My HR department wants me to prove "In loco parentis." How do I prove this? Would a "Durable Power of Attorney" count?
A: The Family and Medical Leave Act (FMLA) and all of its details can be confusing, even to HR professionals, attorneys and others. 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 for certain purposes. FMLA only applies to employers with 50 or more employees. The leave may be taken continuously or intermittently in blocks of time ranging from an hour to several days or weeks, depending on the circumstances. One of the permissible purposes of FMLA leave is to care for the employee's spouse, son, daughter, or parent with a serious health condition. Unfortunately though, the statute does not expressly provide an employee with the right to job-protected leave to care for a seriously ill sibling. However, an employee may qualify for FMLA leave to care for a seriously ill sibling if the employee can demonstrate, as your HR department has invited you to do, that the employee stands "in loco parentis" (i.e., in the place of a parent) to the serious ill sibling.
I consulted Attorney Jeffrey A. Dretler, Partner in the Employment Law Practice Group at Prince Lobel Tye LLP. Dretler explains, "There is no bright-line test for proving in loco parentis status. Simply having a durable power of attorney, a legal document which empowers you to make financial and/or health care decisions on your sister’s behalf (depending on what powers are given in the document) is not, by itself, sufficient to bestow in loco parentis status, although it is certainly a helpful factor. Assuming that your sibling is age 18 or older, you must demonstrate that she is incapable of self-care because of a mental or physical disability on an ongoing basis, not just unable to drive home after a weekly medical treatment. The more you can do to show that your sibling relies on you to take care of her financial and medical needs on a day-to-day basis, the greater your chance of demonstrating in loco parentis status."