Editor’s note: This article has been edited to clarify an employer may adopt a policy limiting the amount of family and medical leave spouses working for the same employer may take for certain circumstances.
While you may be familiar with how Family and Medical Leave (FML) generally works, many are surprised to find out that it’s not as straight-forward for spouses working at the same employer.
FML rules allow an organization to adopt a policy requiring spouses working for the same employer to combine the eligible workweeks of covered leave in the following circumstances:
- Birth, fostering, or adoption of a child
- To care for a parent with a serious medical condition
- To care for a servicemember with an injury or illness
For the care of a parent or in the case of birth, fostering, or adoption of a child, this leave cannot exceed a combination of 12 weeks between spouses working for the same entity, and it cannot exceed a combination of 26 weeks for the care of a servicemember. Each individual also cannot exceed their own allotted 12 weeks of FML in a year, or 26 weeks in the case of care for a servicemember, creating the need for each situation to be individually analyzed to determine how many weeks FML can be used.
FML basic reminders
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.
Intermittent leave for purposes of birth, fostering, or adoption is optional, and organizations should consult their policies (local policy in the case of school districts) for specifics.
Each example below assumes an adopted policy is applicable, both spouses work for the same entity, and they have met the length of employment and hours worked requirement for FML purposes.
Example 1: Julie hasn’t used any FML in the given year. She gives birth to a newborn child and receives six weeks per physician certification for her medical condition. Julie then chooses to take six weeks for bonding with the child. Julie has now utilized her full 12 weeks of FML, but only six of them have been for bonding.
This leaves six weeks of child bonding FML remaining to meet the combined 12 weeks for spouses. Her husband, Derek, also has not utilized any FML in the given year and wants to take leave to bond with the baby. While Derek has 12 weeks of FML available to him, he can only utilize six weeks in this instance.
Example 2: Alyssa and Mary adopt a child. Neither has taken any FML this year, so both have 12 weeks of FML available to them. Only a total of 12 weeks between the two is available for bonding, so the couple must decide how to split the 12 weeks. Alyssa chooses to take four weeks and Mary chooses to take eight weeks.
Example 3: Sam breaks his arm and is out on FML for three weeks. A few months later, he and Susan give birth to a child. Susan is out for six weeks for her medical condition (recovery from birth) and uses two weeks for bonding, for a total of eight weeks of FML.
There are 10 weeks left to utilize for bonding. However, Sam has already used three weeks of FML for his own prior medical condition, so he only has nine weeks left. Sam can only take nine weeks of FML to bond with his child. Since Susan only used two weeks of FML for bonding, she could take the remaining one week of combined time if the employer allowed the use of intermittent leave for baby bonding.
Example 4: Tamika took six weeks of FML to care for her father during his recovery from a heart attack. Her husband, Tim, requests leave to care for his mother following her stroke. He is limited to six weeks of FML for this purpose.
Human resources responsibility
It’s important for leave administrators to be familiar with their policy and understand the nuances of FML for married couples in the case of the birth, fostering, adoption of a child, or to care for a parent. Impacted employees will need to be given information up front regarding their own leave availability, but also the impact of splitting up their FML entitlement, so that leave can be coordinated among both employees.
Additional information about leave for spouses working for the same employer can be found in the U.S. Department of Labor Fact Sheet #28L.
Patti Ellis is an associate consultant at TASB HR Services. Send Patti an email at firstname.lastname@example.org.
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