Employers of 50 or more employees must grant eligible employees up to 12 weeks of job-protected unpaid leave for certain qualifying circumstances, including “care for the employee’s spouse, son, daughter, or parent with a serious health condition”. The law does not mention other relatives, such as siblings, grandparents, aunts, uncles, nieces, nephews, or other relatives.
Yet an increasing number of employees are requesting leave to care for family members outside of the spouse, son, daughter or parent categories. The law allows employees who demonstrate a factual relationship known as in loco parentis to take advantage of the benefits of FMLA leave. This status arises when an employee has assumed the daily obligations for another, comparable to those of a parent.
There is no specific test or factors needed to establish an in loco parentis relationship. Employees who provide financial support, daily caregiving, provision of food, clothing, shelter, health insurance, transportation, and/or medical needs to another may seek the status of an in loco parentis relationship. There is a difference of opinion about whether an in loco parentis relationship requires both financial support and care.
A sibling could be a covered family member if an in loco parentis relationship exists between the sibling and the covered employee. The same may apply to the relationship of a grandparent and grandchild. The in loco parentis relationship is included in the FMLA to reflect the reality that many children in the United States do not live in traditional nuclear families and are increasingly raised by others.
When an employee provides sufficient information to suggest that a request may fall under the FMLA, the employer should request additional information to resolve the issue as to whether a covered family relationship, including an in loco parentis relationship exists.