Let me share a story about Celestia, who requested a few weeks of FMLA leave to care for her sister who was dying from cancer.

Celestia was a finance manager at Midwest Auto Group (known as “MAG”), a car dealership that peddles luxury cars.

What follows, though, is a total used-car salesman move.

The Facts

Celestia’s sister, Sharon, battled non-Hodgkin lymphoma and, upon learning the disease was terminal, Sharon asked Celestia to be her “primary caregiver” in her final days.

In those next few weeks, Celestia cared for her sister in a variety of ways. Notably, she:

  • Paid some of Sharon’s bills and bought groceries and other essential household items.
  • Cooked Sharon’s meals and hand fed her, helped her use the bathroom, cleaned her up when she was incontinent, and brushed her hair and teeth.
  • Took care of her apartment by cleaning, taking out the trash, and doing laundry.
  • Administered medications and moved her around in bed to prevent bed sores and ensure her comfort.
  • Provided emotional support.

Celestia burned through a number of paid leave days to care for Sharon, but the paid leave ran out. At that point, she asked for FMLA leave to care for sister in what would be her final days.

The employer’s response? MAG’s HR representative told Celestia that FMLA “does not cover leave to take care of siblings,” and after confirming this fact with MAG’s lawyers, she doubled down, allegedly telling Celestia that she “needed to choose between [your] job and [your] sister.”

Though MAG was adamant that FMLA leave was “off the table,” it allowed Celestia a few days of unpaid leave to be with her sister. On the day of her scheduled return to work, however, Celestia informed MAG that she would be late, as another caretaker for her sister was delayed by her own flight into town. Within one hour of Celestia’s text reporting her delay, MAG terminated her employment.

Sharon died two days later.

Can a Sibling Take FMLA Leave to Care for another Sibling?

I’ll give you a minute while you pick your jaw up off the floor.

To be clear, Celestia and Sharon didn’t have a familial relationship explicitly covered by the FMLA. They were siblings, after all, and the last time we checked the statute, a sibling can’t take FMLA leave to care for another sibling.

Nevertheless, FMLA offered one – and only one – potential lifeline. In Celestia’s opinion, she believed that FMLA protected her time away from work because she stood in loco parentis to Sharon – meaning that she put herself in the situation of a lawful parent by assuming (for a few short weeks) the parental obligations over Sharon.

As initial matter, Celestia did not have the law on her side. For decades, courts have quickly shut the door on employees seeking FMLA protection to care for their siblings, such as the following courts, which explicitly rejected FMLA leave for siblings. Here are a few:

  • Smith v. Women’s Healthcare: “[t]he care of a sibling…is not protected under either state or federal law;” therefore, care for a sister is “a matter of [an employer’s] discretion.”
  • Gude v. Rockford Center: “caring for one’s sibling is not a guaranteed right under the FMLA.”
  • Olejarz v. Shaler Twp.: “the provisions of the FMLA make clear that the Act does not extend to leave taken to care for a sibling.”

MAG took it a step further, arguing that Celestia could not serve in loco parentis because neither the parent-child relationship nor the incapacitating disability began before the “child” (here, Sharon) turned eighteen.

FMLA Offers a Path for Siblings

Not so fast, MAG, said the Sixth Circuit Court of Appeals which, by the way, is one of the most employer-friendly federal appellate courts in the country. First, said the court, there is nothing establishing that “in loco parentis” relationships cannot form after the dependent is eighteen or after the onset of disability.

The court dug deep, harkening back to one of its own decisions from 1951:

. . . we conclude that in loco parentis relationships can form between adults, including adults who also happen to be siblings . . . the ‘child’ in the in loco parentis relationship need not be a minor at the time the relationship forms, have developed a debilitating condition as a minor, or have developed that condition before the relationship formed.

Ok, first issue resolved: according to this court, you aren’t required to serve in loco parentis to the sibling before they were age 18 in order to serve in this role later in life. I can make that jump.

But Celestia still has to clear the next hurdle – that today, she is serving in the role of Sharon’s parent. How does she show that this in loco parentis relationship so as to reach the FMLA promised land?

According to the court, it must be clear that they have taken on the role “with the intention” of serving as a parent. It’s not sufficient “just provide aid to a loved one who could use the help . . . ‘kindness and generosity’ are not enough.”

The In Loco Parentis Standard

To show an in loco parentis relationship, siblings like Celestia must show that she:

  1. Is in close physical proximity to the adult loco parentis child;
  2. Assumes responsibility to support them;
  3. Exercises control or has rights over them; and
  4. Has a close emotional or familial bond with them, akin to that of an adult child.

This list is not exclusive, no single factor is dispositive, and they should not be weighed like a math problem. But, as the court note, these are the types of factors it looks to in evaluating in loco parentis relationships.

Putting it this way, it doesn’t seem that onerous a standard, does it?

The court did not take a position one way or the other as to whether Celestia was the “parent” to Sharon. Rather, it sent the case back to the trial court to let the lower court to determine if the record reflects a material question of fact as to whether Celestia and Sharon intended to form a relationship in Sharon’s final months that was parental in nature or whether, even construing the facts in Celestia’s favor, the record reflects the generous assistance of a devoted sister who did not intend to assume a parental status

You can access the court decision here: Chapman v. Brentlinger Enterprises.

Insights for Employers

This is a big deal.

Reasonable minds can differ about whether the FMLA applies to siblings. For instance, I think the court flat out got this wrong on the law.

Notably, the court was quick to point out that it’s not enough to provide aid to a loved one for a short period of time. Yet, isn’t this what happened here? Celestia took leave for a couple of weeks, traveled a long distance to attend to her sister, but then returned a few weeks later. There hardly seems to be any permanency to this relationship, as you would expect in a “parental” relationship. For instance, Celestia did not establish that she would be providing day-to-day care with daily life activities for an indefinite basis, as you would find in a parental relationship. She did not establish that she would take up residency close to Sharon so that she could help her attend to her needs. To the contrary, Celestia came into town for a short time, knowing that she would return to day-to-day life in a few weeks.

But friends, there is so much more than just the law.

So, rather than blindly follow the law, as MAG did, let’s think about the following best practices when your own Celestia asks for leave to care for her sibling:

  1. Be Compassionate.  We will not be remembered for how much we grew the bottom line, but by how we made someone feel.  Years ago, I lost my father after a tough battle with cancer. As my dad dealt with his illness, I remember how my law firm treated me — with respect, empathy and kindness — as I cared for him in his final days. Should it have been any different had it been my brother or sister, instead of my father?
  2. No Knee Jerk Reactions. When your employee is seeking FMLA leave to care for a sibling, grandparent, grandchild, or [name your family member], this court decision reminds us that we should have no knee-jerk reactions in assuming that FMLA doesn’t apply. As we see here, FMLA may very well be alive and in play.
  3. Instead, check the in loco parentis relationship. When leave is requested to care for a family member, I recommend a practice in which you provide your employee a questionnaire in which you probe further the familial relationship and the kind of care the employee will provide. Ask your favorite employment attorney if he/she can draft this for you. I have one handy for all my clients. This questionnaire will help determine whether the employee intends to stand in the role of parent, such that FMLA may apply.
  4. Before Hitting the Termination Button, Give the Employee a Chance to Explain. Bad facts make bad law. It seems patently obvious that this otherwise employer-friendly court was moved by the alleged employer reaction here. But it’s a lesson to the rest of us. Before making the termination decision, ensure you’ve given your own Celestia a chance to explain why she was late to work on the day of her return, and whether there is room (as there should be) for a little grace and empathy.

‘Nuff said. Now, get back to work!