FMLA and Spouses Working for the Same Employer

Elga Lejarza-Penn

Most HR professionals are aware of at least one situation where FMLA limits the combined amount of FMLA leave, eligible FMLA spouses working for the same employer can take in a 12 month period. But do you know there are are two more situations?

Let’s start by reviewing the eligibility requirement for an employee to be able to take FMLA:

  1. The employee must have been employed with the company for 12 months, which we know those 12 months don’t need to be consecutive.
  2. The employee must have worked at least 1,250 hours during the 12 months prior to start of FMLA leave.
  3. The employee works for a covered employer. Which is an employer who employs 50 or more employees within a 75-mile radius of the employee’s worksite.

Next, let’s review one more thing before we dive in on the question above. For purposes of FMLA leave, spouse means a husband or wife as defined or recognized in the state where the individual was married and includes individuals in a common law or same-sex marriage. Spouse also includes a husband or wife in a marriage that was validly entered into outside of the United States, if the marriage could have been entered into in at least one state.

Eligible spouses who work for the same employer are limited to a combined total of 12 workweeks of leave in a 12-month period for the following FMLA-qualifying reasons:

  • The birth of a son or daughter and bonding with the new child, the placement of a son or daughter with the employee for adoption with the employee for adoption or foster care and bonding with the newly-place child (we commonly call it “baby bonding).
  • The care of a parent with a serious health condition. Ouch! most people don’t like to hear this one, but I am only sharing knowledge. I did not create the FMLA regulations!
  • The care for a covered service member with a serious injury or illness. Keep in mind that military care-giving leave provides eligible employees “26” workweeks of leave in a 12-month period. Meaning that the 26 weeks will be combined, shared by the spouses if they are working for the same employer.

Are you ready for an example?

Mary and John are married, FMLA-eligible employees, who for the same employer. Their son Paul has been injured during service and is returning home to be taken care by his parents. Mary takes 16 weeks to care for Paul. In the same 12-month period, John also wishes to use leave to care for his son Paul. How many workweeks of FMLA for military care-giving leave can John take? The correct answer is 10 weeks.

Other FMLA-qualifying events are not limited on the amount of eave for spouses working for the same employer and these are:

  • The care of a spouse or son or daughter with a serious health condition.
  • A serious health condition that makes the employee unable to perform the essential functions of his or her job
  • Any qualifying exigency arising out of the fact that the employee’s spouse, son or daughter, or parent is a military member on “covered active duty”.

People think I am crazy when I say “I love FMLA” but I do, honestly! I like to share the knowledge that I have acquired in 25 long but rewarding years working in the exciting world of Human Resources.

If you would like to learn more about FMLA and ADA please join me at one of my 2-Day FMLA, ADA and PDA Certificate Programs.

2-Day FMLA, ADA and PDA Certificate Program (Starts 8-26-2019)

2-Day FMLA, ADA and PDA Certificate Program (Starts 11-7-2019)

Elga Lejarza-Penn, aPHR, PHR, SPHR, SHRM-CP, SHRM-SCP

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