FMLA to care of Adult Disabled Sibling

KathyA · November 2003

An employee's spouse's 38 year old brother (who is somewhat mentally disabled) has been living with them for several months and they are receiving his SSI benefits to care for him (both parents are deceased). Due to Medicaid cutbacks, the brother is not entitled to adult day care. They are losing their caregiver and either she or her spouse will need to take FMLA to care for the brother until they find day care help. Am I correct that our employee is not entitled to FMLA since the brother is her in-law, but her spouse is the only one entitled? We're more flexible than what federal law allows, but I do need the federal interpretation. Thank you.

irenesmsaclaims · November 2003

The Act requires you to allow a FML (if the ee has worked for at least 12 months and for at least 1250 hours during the 12 months prior to the leave) for a spouse, parent or child. The spouse (if qualified) of your employee wouldn't get the FML either because it's a sibling. This is the strict interpretation of the federal law. If you company is more generous, and it's your policy to allow more liberal leaves for FMLA, then you would need to apply this across the board, to all employees.

mbeam · November 2003

You may want to check into whether your employee and her husband have been declared guardians of his brother. In this particular circumstance, that may be the difference. Usually siblings wouldn't fall under this but this seems to be a different situation (parent in loco - am sure I'm messing this term up but one they should check into as it refers to taking the place of a parent).

Don D · November 2003

I would go with the interpretation that the couple is serving en loco parentis for the disabled brother and approve it. If they are receiving his SSI you can be assured it's an approved relationship.

FMLA to care of Adult Disabled Sibling

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