Pursuant to the Federal Family Medical Leave Act (FMLA), subject to specific “military caregiver leave” situations, no person is entitled to more than twelve (12) weeks of leave during a twelve (12) month period. This restriction applies even when spouses work for the same employer. In this regard, as a general rule, eligible spouses who work for the same employer are each entitled to up to twelve (12) workweeks of FMLA leave in a twelve (12) month period. Each employee may take FMLA leave, without regard to the amount of leave their spouses have used during that twelve (12) month period, for the following reasons: (a) the care of a spouse or son or daughter with a serious health condition; (b) a serious health condition that makes the employee unable to perform the essential functions of his or her job; and (c) any qualifying reason caused by the employee’s spouse, son, daughter, or parent being a military member on “covered active duty.”

Despite the individualized twelve (12) month FMLA leave period, there are special circumstances that apply when spouses work for the same employer.

First, upon the birth of a baby, an adoption, or foster-care placement, the employees may take a ‘combined’ twelve (12) week leave for the purpose of ‘bonding’ with the child. The employees are entitled to combine their individual leave periods in any combination they choose, so long as the combined leave of both employees does not exceed twelve (12) weeks. The portion of the twelve (12) week period that each parent uses for ‘bonding’ is deducted from the annual twelve (12) week FMLA leave period each employee may use.

Second, the employees may take a ‘combined’ twelve (12) week leave for the purpose of taking care of a parent with a serious health condition. Importantly, the same rule applies to birth-parents and to in-laws. This means that both employees are entitled to take leave in order to take care of any parent that has such status by virtue of birth or marriage. As above, the employees are entitled to combine their individual leave periods in any combination they choose, so long as the combined leave of both employees does not exceed twelve (12) weeks. Also as above, the portion of the twelve (12) week period that each parent uses for taking care of a parent with a serious health condition is deducted from the annual twelve (12) week FMLA leave period each employee may use.

Third, the employees may take a ‘combined’ twenty-six (26) week leave for the purpose of taking care of a covered service member with a serious health condition. This leave, commonly referred to as “military caregiver leave,” can be taken in order to care for a covered service member who is a parent, spouse, son or daughter, or next of kin. Pursuant to the FMLA, an eligible employee may take up to twelve (12) weeks of the twenty-six (26) weeks for individual reasons, and then use the balance for “military caregiver leave” to care for a covered service member. If an employee uses less than twelve (12) weeks for individual reasons, the balance of the twenty-six (26) weeks may be used for “military caregiver leave.” Importantly, as to spouses who work for the same employer, they may combine this twenty-six (26) weeks in any combination they choose in the same manner as with leave to bond with a child.

Another important consideration is that the rules as to combined FMLA leave do not apply to employees who are not eligible for FMLA leave. Therefore, as to spouses who work for the same employer, where one spouse is eligible for FMLA leave and one spouse is ineligible for FMLA leave, only the spouse that is eligible for FMLA leave may take the full amount of leave.

If you have questions about FMLA leave, please contact David Ryan at david.ryan@ryan-ryan.net or by telephone at 203-752-9794.