The news has devastated you. Cancer. Advanced. Weeks to live. You do not know what you are going to do. Both of your parents are gone. Your mom was in a car accident five years ago, and your father died not long after that. The only person left is your younger sister. She has invited you to come live with her in Georgia. She has a little back house you can stay in until the end.
You are worried, though. Who will actually care for you? What you did not lose in the recession you lost with the divorce. What little is left won’t last long between treatments and necessary medical care. Your sister has offered to take time off work, but she cannot lose her position just to care for you.
This is a position we all hope to never find ourselves in. Battling some disease or other malady and becoming a burden for our last weeks or months of life. Being on the other side of this situation is just as bad . . . having a family member to care for but worrying that if you do it, it could cost you a job you have worked years to get.
The Family and Medical Leave Act was passed to provide protection in such situations, but it doesn’t help when the person who needs care is a sibling, except in very limited and specific situations. The Act specifically applies to parents, children, and spouses with no mention of siblings or grandparents. It allows for an individual to take unpaid leave from work for his or her own serious health condition. The law also allows workers to take time off to care for an immediate family member with a serious health condition, most commonly a spouse, child, or parent.
The U.S. Department of Labor has published an interpretation of the FMLA to clarify when it believes the FMLA would apply to siblings. In order for the FMLA to apply to siblings, the person attempting to apply must show that he or she stands in loco parentis to the individual needing care. This means the person must show, in addition to what is required normally for FMLA coverage, that he or she acts on behalf of the individual in the same way that a parent would care for a child.
Elements to consider in determining an in loco parentis relationship include the age of the individual, the degree he or she is dependent upon the caregiver, the amount of financial support provided, and the extent that the individual is providing care.
Finding oneself needing to care for a sibling, or finding ourselves needing care and only having a sibling to provide it, is a scary position to be in. Establishing the necessary elements for coverage under the FMLA when caring for a sibling is a high hurdle. The attorneys at Armstrong & Vaught, P.L.C., can help you navigate the complexities of the Family Medical Leave Act to provide comfort and clarity in a difficult time. Call us today at 918-582-2500 or contact us online for a free consultation with an experienced attorney.