Big News for Sibs! Department of Labor Clarifies Sibling Coverage for Family and Medical Leave

FMLA 4 Siblings #FMLA4Sibs

The Sibling Leadership Network (SLN) is excited to announce that the Department of Labor has clarified when siblings may be eligible to take job-protected leave under the Family and Medical Leave Act (FMLA)! In two updated Fact Sheets 28B and 28C and a FAQ, the department describes the situations when sibs may be protected. For the first time, the Department has included siblings among those eligible for FMLA job-protected leave under certain circumstances.

As you may have heard, siblings are not explicitly included in the law. At the SLN, we have heard from you about the problems this creates for our families. Even a member of our own board ran into this barrier when she tried to take leave to care for her brother. The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for their own health or to care for a family member, including to care for the employee’s spouse, child, or parent who has a serious health condition. Sibling are not listed.

However, the Department of Labor expands on those definitions in its fact sheets and frequently asked questions. Specifically it includes instances when someone may be acting in loco parentis, or “in the place of a parent.” After hearing from the SLN and other disability advocates, the Department of Labor agreed to clarify that siblings may meet this definition. If a sibling steps in to care for an adult sibling who is “incapable of self-care because of a mental or physical disability” (See Fact Sheet 28B), he or she may be performing caretaking duties like a parent would and may be able to claim in loco parentis eligibility FMLA protected leave. For more information, see the SLN’s Fact Sheet on the FMLA and Siblings.

We are very happy with this change in interpretation of the law, but we will continue to fight for a full legislative fix to ensure that siblings are always protected.

We would also like to thank our partners in this work, including the National Council on Aging, Association of University Centers on Disabilities, The Arc, National Association of Councils on Developmental Disabilities, and National Partnership for Women and Families.

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12 Responses to Big News for Sibs! Department of Labor Clarifies Sibling Coverage for Family and Medical Leave

  1. Doris Jaffe says:

    It’s about time siblings were included. Hopefully, FMLA coverage includes or soon will include adoptive and foster parents/children/siblings and grandparents/grandchildren. When multi-generation families live together the law needs to take that fact into consideration.

    Most people are honest. Yes, there always will be folks trying to milk the system using sick leave inappropriately and there should be consequences they have to face. Yet they are in the minority. One way to overcome this situation is to pay employees dollar for dollar for the sick time they have accrued because they did not need to use it. One local agency paid one tier of retirees 1/4 the sick balance they accrued but a different tier of retirees were able to convert their leave balances to service hours. Sick leave should never be “use it or lose it.”

    FMLA used properly is a much-deserved employee benefit.

    • anns guthrie says:

      Kudos to all you lobbied for this to be enacted. Although my brother with disabilities is no longer alive, another brother has experienced critical health problems over the last 10 years and his family required a great deal of support. Fortunately my 2 sisters and I worked for employers who granted FMLA so we could be available as needed. Because of this we were able to take time off to be at his bedside at a hospital 3 hours from our homes, as well as provide needed support to his wife and his children that helped them get through multiple crises. Having the ability to do this without jeopardizing our jobs was a godsend. For my brother and his family things would have been much more challenging and for those of us too far away or busy to lend support, it would have been heartbreaking.

  2. The FMLA provides protected leave to care for a “family member,” which federal law and regulations define as a spouse, child or parent including adoptive and foster relationships between parent and child. However, some state family leave laws extend the definition to include grandparents, step-grandparents, aunts and uncles, and siblings.

  3. Jane Monroe says:

    I was just denied for FMLA for my sibling. I have medical power of attorney.and my sister is in her last stages of life and I make all her decisions, etc. I thought the law was changed on August 7th to include siblings, but was advised that is not true. Maybe I am misunderstanding? Can anyone explain when the FMLA would apply to sibling?

    • Emily Ladau says:

      Hi Jane, have you shared fact sheet 28B with your employer, and note where it says siblings? Here is the link: https://www.dol.gov/whd/regs/compliance/whdfs28b.htm Also, the law was not changed, but guidance was updated to clarify to employers that siblings are covered under the current law in the “in loco parentis” provision.

      • LeAnne says:

        Hi Emily,

        I am also wondering how, specifically, FMLA would apply to all siblings. 28B does refer to siblings but all the examples and questions involve children. The siblings I am trying to assist are in their 50’s. Can you please clarify so I can present a solid case? Thanks!

        • Emily Ladau says:

          The discussion of “children” in Fact Sheet 28B can be a little confusing. The Department of Labor includes people over the age of 18 who cannot take care of themselves due to disability to be “children” and then continues their references to “children,” including people with disabilities, throughout the fact sheet.

          Similarly, siblings acting “in loco parentis” are considered “parents,” and the Department uses “parents,” including siblings acting in loco parentis, throughout the document.

          So, in short, as long as a sib is caring for another sib with a disability and providing care, the ages shouldn’t matter.

  4. Susan Atwell says:

    I was unaware of this law and my employer said nothing in regards to this law. My brother is terminals I’ll with 4th stage brain and lung cancer. He has no family or children to help him but me. He is 54 years old and lives in my home. I have a 2 family and he upstairs from me. 24 7 I’m there for him. Taking him to his treatments ect… I am his proxy. I asked for a leave of absence assuming FMLA would cover family. Employer indicated to me it does not. I am a teacher and wanted to resume in Jan . I was asking for the 3 months. When they indicated FMLA was not able to grant me this request because siblings did not apply they never told me about the FILA siblings . Was it there responsibility to do so. I spoke to HNR from this employer and they said nothing. They then asked me to take the full year off with no guarantee my job will be there in September of the next school year. This is a Catholic school system no union. I then was shocked sad and start to look up FILA information and came across the 28b form on the Sibling Network stating as of Aug 2015 the law changed. Please explain my rights and was it the employers obligation to inform me of this.I was so unaware. Please help!

    • Emily Ladau says:

      Unfortunately, many employers continue to mistakenly believe that siblings are not covered by FMLA. We worked with the Department of Labor to include siblings in Fact Sheet 28B so that siblings could take the fact sheet to their HR departments and show that the Department of Labor does include siblings in FMLA.

      According to the Department of Labor, employers are required to post information about FMLA eligibility and inform employees of their ability to take leave. That information is available on this website under “Employer Notice” https://www.dol.gov/whd/fmla/fmla-faqs.htm

  5. Brodie Major Sr says:

    I was denied FMLA Sibling. The Fresno City is saying. In order to qualify gotnFMLA Sibling. You would have to had to take care of your sibling as a child to qualify.

  6. Paul Steffens says:

    My wife was just denied FMLA for her younger sister, I have been researching this and am a little confused so I am looking for some clarification,
    She was told in loco parentis does not apply because she was not acting as a parent prior to the request for leave.
    Just recently her younger sister was diagnosed with terminal cancer and was given
    a short time to live, Both parents are deceased. Her sister lives in her own apartment with her 18 year old daughter who works and goes to school full time.
    My wife wants to take leave to care for her sister but as stated she was denied due to not being in loco parentis prior to her request.
    Any information would be greatly appreciated.
    Thank you.
    Paul