Siblings and the Family and Medical Leave Act (FMLA)
Since our announcement last summer about the Department of Labor’s inclusion of siblings in Family and Medical Leave Act (FMLA) coverage, we’ve had several questions from siblings. This post addresses many of those questions. However, the best source of information is always directly from the Department of Labor.
In Loco Parentis
The most common question regards the two different ways that in loco parentis applies under FMLA. In loco parentis is Latin for “in the place of a parent.” The law does not list siblings as covered family members. However, the Department of Labor has interpreted “parents” under the law to include those acting in the place of a parent – in loco parentis.
There are two ways that people are covered in loco parentis
- You – the employee – are providing care to someone who acted in loco parentis for you when you were a child. Your eligibility is based on the fact that this person acted “in the place of a parent” in the past.
- You – the employee – are providing in loco parentis In this case, your eligibility is based on the fact that you are acting “in the place of a parent” right now.
Employers often confuse these two versions of in loco parentis. Some have told siblings that they are only eligible if they provided care for their siblings when they were younger. This is a common misconception that confuses the two versions of in loco parentis.
Is Your Employer Required to Inform You of Your Eligibility Under the 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 Department of Labor page under “Employer Notice”
Why Do FMLA Fact Sheets Refer to Children? Are there Age Restrictions?
The FMLA fact sheets frequently refer to children or “son or daughter” as eligible care recipients. Under FMLA, that definition of “son or daughter” includes people over age 18 who are “incapable of self-care because of a mental or physical disability” (Fact Sheet 28B). This means that adults with disabilities are eligible care recipients under the FMLA, regardless of age.
Where Can I Find More Information?
The best place for information about FMLA is always the Department of Labor. The Wage and Hour Division website lists information on the FMLA and all of the fact sheets regarding FMLA. If you have remaining questions or concerns, call 1-866-487-9243 or visit www.wagehour.dol.gov to be directed to the nearest Wage & Hour Division office for assistance.
Big News for Sibs!
Department of Labor Clarifies Sibling Coverage for Family and Medical Leave
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.