Concurrent Spousal FMLA

jbrimer

A husband and wife in our employ have both applied for six weeks of FMLA leave for the birth of their child, asking to take the leave at the same time. It is my understanding that:(1) a total of 12 weeks can be granted to spouses working in the same organization for the birth of a child, and not 12 weeks each; and (2) under FMLA regs we are not required to grant the leave for both at the same time, i.e., one can take up to six weeks and return to work and then the other can take six weeks. Am I wrong?

jbrimer

vmiller MO

Interesting questions. According to the Regs. (29 CFR sectuib 825.202(a) a husband and wife, who are employees of the same employer and who are both eligible for FMLA leave, can be limited to a combined 12-weeks the following reasons:

1. birth of a son or daughter or to care for the son or daughter after birth;
2. placement of a son or daughter with the employee for adoption or foster care, or to take care of the child after placement;
3. care for the employee's parents with a serious health condition.

Note that each gets 12-weeks for their own serious health condition if they have not used FMLA leave for one of the above reasons. If they have, they get the amount that is remaining. (29 CFR section 825.202(c).

In regard to the second part of your questions, I do not find anything in the regulations that addresses this issue. There are a lot of scenarios that one could conjure up. For example, it is possible that a parent of the husband and a parent of the wife may both have serious health conditions that require the employees to care for their individual parent. If the employees obtain the proper medical certification, I believe that the DOL will take the position that both the husband and the wife can be off on FMLA leave at the same time. It would also appear that the same type of reasoning would apply to #s 1 & 2, at least for the birth or placement of a child. As to taking FMLA because of a serious health condition of a child, an employer can ask for medical certification that both have to be off work at the same time. If that Medical Certification is yes, my bet is that the DOL will take the position that the employees are entitled to FMLA leave. Since this issue is open to interpretation, I suggest that you contact your legal counsel for advice.

There is another scenario. The husband and wife are eligible employees. The wife is off due to complications of child birth and the husband produces a medical certification that he needs to be off because of his wive's serious health condition. Another variation is that the wife has a serious health condition due to the delivery and the child has a serious health condition at birth.

This is why this statute is so wonderful. It stimulates the brain on Monday morinings.

jbrimer

Very thoughtful reply, thanks for taking time to do so.

Rockie

You are right on the first question - may only take a combined 12 weeks for the child; but on the second, I believe you would have to grant them leave at the same time if they requested it. I personally have never had this happen and have only had one male request this type of leave, but I can't forsee any way you could deny them taking the leave at the same time.

Don D

VMiller gives a great analysis and Rockie, as always, is on top of things. I have another spin that I think might help with this. Jumping at the chance to let them both off at the same time for six weeks will kill more than two birds with the proverbial stone. Consider if you have them off at different times. The primary result of that would be that the 'working' one would be on the telephone at least 6 hours per day talking to the other one about the baby, the house, the in-laws, the diapers and the toots in the bathtub, resulting in your losing both their productivity for a total of 12 weeks. Having them both off for the same six week period will get it over with all at once. Then, welcome to the world of daycare problems.......