Does FMLA cover a sister?

nohr4u1yr

Hi! I have an employee that is requesting FMLA to take care of her sister that is mentally disabled - would she (the employee) be covered under FMLA or is it just for taking care of yourself, spouse, parent or child? Right now her sister is in the mental ward but she is trying to bring her home.

marc

The sister part does not qualify unless she is appointed as legal guardian.

nohr4u1yr

Thank you! I looked through the 138 pages of the regs and couldn't find that. Do you know what section it is located under?

marc

In the regulations, check out 29 CFR 825.113. The family members covered are listed. Siblings are not included in the listing. This is also the place where it talks about "in loco parentis" which would allow any person in that position to care for any other person.

Also, if you are reading the Law, it is in Section 2 Findings and Purposes (b)(2) To entitle EEs to take reasonable leave for medical reasons for the birth or adoption of a chid, and for the care of a child, spouse, or parent who has a serious health condition.

nohr4u1yr

I asked the employee if she has legal guardianship over her sister and she stated it will be sometime next year (jan-mar) So until she can provide me with that documentation she would not be eligible for FMLA, right?

Sorry if I am not "getting it" I just want to be sure that I am following the procedures correctly.

Thank you again for all your help!

marc

That is my understanding.

Don D

I'll weigh in with a different perspective. Whereas 'guardian' is defined as one who has LEGAL care or management of a person or estate, In Loco Parentis does not require legal custody or guardianship. My understanding is that the term simply defines a person or institution who acts in place of or who has assumed the obligations of a parent. This might be a boarding school or another institution or one who has assumed the care of another, in my humble, non-legal opinion.

If my analysis is true, then 29CFR825.113 is met in the circumstance you describe. It would be if I were the one evaluating it.

HRinFL

I agree with Don. I believe that coverage is exended to parents, grandparents, etc. where the ee is the primary caregiver, when the family member lives with the ee, etc. I would err on the side of caution, if she is trying to gain custody of her sister and pursuing legal guardianship, I would treat the ee as the primary caregiver and offer her the cert. forms for FMLA. How long is the requested leave for? Is it to take care of the legalities involved in becoming the sister's guardian or to transition the sister to her new home? What will you do when she is granted guardianship and needs intermittent leave to take her sister to appointments, etc.? I think if you determine at that time she falls under the definition of a caregiver, she would meet the standard now.

Balloonman1

While some may feel I can be a hard ass at times, in this case it appears we are dealing with a caring individual of high character. In looking at this you must always think when going into what one thinks is a gray area how often will this come up. Don and a couple of the others made a good point, she meets the definition, even if the courts have finished the paperwork.
Go ahead and grant it..........beside the fact that it sounds like you have to, it will generate quite a bit of good will with the employee.
My $0.02 worth,
DJ The Balloonman

nohr4u1yr

I agree - that you for everyone's input. I sent her the paperwork yesterday.

Thank you!

Have a great day!

Shelley