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Leave under the Family and Medical Leave Act and its Application to Spouses Working for the Same Employer.

Family and Medical Leave Act


The Family and Medical Leave Act of 1993 (“FMLA”), as amended, protects employees who need
leave from work for their own medical condition(s), as well as for the care of certain other
individuals. Under the FMLA, only eligible employees of a covered employer can take advantage
of the Act’s guaranteed annual leave and its protections against employer interference and/or
retaliation. The FMLA generally provides for twelve weeks of guaranteed leave within a twelve
month period, but, for military caregiver leave, the FMLA provides up to twenty-six weeks of
guaranteed leave in a twelve month period.


When spouses work for the same employer, the FMLA may limit the total amount of leave the
spouses may take for certain FMLA qualifying reasons. Under the FMLA, “spouse” means a
husband or wife, as defined, or otherwise recognized, in the state where the individual married.
This includes individuals in a common law or same-sex marriage, as well as individuals that
married outside of the United States, if the marriage could have been entered into in at least one
state.


Which qualifying leave reasons are subject to limitation?


Spouses who work for the same employer and are both eligible for FMLA leave are limited to a
combined total of twelve weeks of leave in a twelve month period under the following qualified
reasons: (i) the birth of a son or daughter and bonding with the newborn child; (ii) the placement
of a son or daughter with the employee for adoption or foster care and bonding with the newlyplaced
child; and (iii) the care of a parent with a serious health condition. For military caregiver
leave, such spouses are limited to a combined total of twenty-six weeks in a single twelve month
period to care for a covered servicemember with a serious injury or illness, if each spouse is a
parent, spouse, son or daughter, or next of kin of the servicemember.


If one spouse is eligible for leave and the other is not, the noted limitations on combined leave do
not apply. Rather, the spouse that is eligible for FMLA leave is entitled to the full amount of leave.


Which qualifying leave reasons are not subject to limitation?


Spouses who work for the same employer and are both eligible for FMLA leave are not subject to
FMLA leave limitations for the following qualifying reasons: (i) the care of a spouse or son or
daughter with a serious health condition; (ii) a serious health condition that makes the employee
unable to perform the essential functions of his or her job; and (iii) any qualifying exigency arising
out of the fact that the employee’s spouse, son, daughter, or parent is a military member on
“covered active duty.”


If you feel your employment rights under the FMLA have been violated, or if you have any other
questions regarding your employment rights, please contact the experienced Birmingham
employment law attorneys at Wrady Michel & King. You can contact us either online or by calling
us at (205) 319-9724. We are here to serve you.