One FMLA rule that tends to fly under the radar is the amount of FMLA leave available to married couples who work for the same employer.
Under 29 CFR 201(b), married couples in this situation can be required to share a combined 12 weeks of FMLA leave in two circumstances:
- To bond with their new child; or
- To care for their own parent with a serious health condition.
The actual regulation states it like this:
Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth, or for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement.
Plenty of employers understand that the spouses split 12 weeks of FMLA for bonding time, but plenty more employers forget that the FMLA sharing also occurs when one or both of the spouses care for a parent.
How Does This Work in Practice?
Consider some examples to help illustrate the point:
1. Mike and Carol are married and work for the same employer. Carol takes two weeks of FMLA leave at the end of her pregnancy for preeclampsia. These two weeks of FMLA leave do not count toward the couple’s combined 12 weeks. This leave is for a serious health condition (complications with pregnancy), not bonding with a new child. So, their combined leave still remains at 12 weeks.
2. Let’s assume that, in the same 12-month period, Mike later takes 3 weeks of FMLA leave to care for his dad, who was injured in a car accident. After 6 weeks of maternity leave, Carol must sit bedside with her mother, who requires constant supervision. How much FMLA leave can Carol take to care for mom? Just 3 weeks, since that’s the only combined FMLA leave remaining.
3. That leaves zero weeks left for Mike to care for his mother-in-law. Covered by FMLA? Of course not. Caught you napping, yes?
4. Although Mike and Carol have exhausted FMLA leave to bond with their child or to care for their own parents in this FMLA leave year, Carol still has 1 week left for her own serious health condition or to care for Mike/her child with a serious health condition. Mike has 9 weeks left for the same purpose.
The Marriage “Penalty”
The slightly absurd reality here is that none of the above rules apply if Mike and Carol were not married. Notably, the DOL has acknowledged that this provision does not apply to unmarried couples. Although this looks like a penalty against married couples, the DOL did not mean for these rules to do so. Actually, the purpose of allowing employers to limit time off like this was intended to encourage employers to hire married couples, thereby reducing the burden on those employers if their married employees decided to have children.
Not sure whether that’s playing out in reality.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.
