Legal Question in Medical Leave in Indiana

If an employee has guardianship of a an adult sibling who has a mental incapacity, would that sibling be regarded as a son or daughter under the FMLA?

Asked on 11/07/16, 6:33 am

1 Answer from Attorneys

Betty Tsamis Tsamis Law Firm PC

I think more facts are needed to properly answer your question.

I hope the following helps, however:

In loco parentis refers to the type of relationship in which a person has put themselves in the situation of a parent by assuming and discharging the obligations of a parent to a child. It exists when an individual intends to take on the role of a parent.

The FMLA regulations define in loco parentis as including persons with day-to-day responsibilities to care for or financially support a child. Courts have indicated some factors that determine in loco parentis status include:

• the age of the child;

• the degree to which the child is dependent on the person;

• the amount of support, if any, provided; and

• the extent to which duties commonly associated with parenthood are exercised.

An eligible employee is entitled to take FMLA leave to care for a person who provided such care to the employee when the employee was a child. If the individual stood in loco parentis to the employee when the employee was a child, the employee may be entitled to take FMLA leave even if he or she also has a biological, step, foster, or other parent, provided that the in loco parentis relationship existed between the employee and the individual when the employee met the FMLA’s definition of a “son or daughter.”

Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements.

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Answered on 11/07/16, 6:40 am

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