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?
1 Answer from Attorneys
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.