Q&A: Do siblings have to split FMLA leave?
A brother and sister both work for our organization and have requested FMLA to care for their sick father. Are they both entitled to 12 weeks of leave each? Or, must they share the leave?
These siblings likely may take leave to care for their father under the federal Family and Medical Leave Act (FMLA), and they may be able to do so at the same time if they can both show that they are “needed to care for” their mother.
Under the FMLA, an employer may require that the employee provide certification from a health care provider “in a timely manner” of the serious health condition of the spouse, child, or parent, including a statement that the employee is “needed to care for” the family member. See 29 U.S.C. §2613. According to the FMLA regulations, “needed to care for” may encompass both physical and psychological care. For example, it includes situations where, because of the serious health condition, the family member is unable to care for her own basic medical, hygienic, or nutritional needs or is unable to transport himself to the doctor. See 29 C.F.R. §825.124(a).
An employer’s ability to determine whether an employee truly is needed for psychological comfort or reassurance is limited to getting certification of the need from a health care provider. Although the statute and the regulations do not define psychological comfort and reassurance, courts could interpret the term to mean that the availability of others to provide psychological comfort or reassurance to a spouse or child is irrelevant.
So, if the employees both can provide medical certification of the need for leave for the same dates, it is likely they may take the leave at the same time and the employer should provide the leave as required by federal law.
When both spouses work for the same employer, the full amount of leave is limited to an aggregate of 12 weeks for the birth, adoption, or foster care placement of a single child or to care for a parent with a serious health condition. However, there is no such similar requirement for siblings caring for a parent. Accordingly, each sibling is entitled to 12 weeks.
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