FMLA Scenario 1.0

August 17, 2011, 9:22 AM

Some of the most common questions from human resource professionals involve employees taking leave under the Family and Medical Leave Act ("FMLA"). Therefore, this blog will routinely address some of the trickier situations that can arise under the FMLA.

Today's situation: A husband and wife work for the same employer. The employer is covered by the FMLA and both the husband and wife satisfy the requirements for taking covered leave. Yesterday, the wife gave birth to a baby. Both the husband and the wife request leave under the FMLA to care for their newborn child. How much leave are they entitled to?

The FMLA regulations explain that a husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for birth of the employees' son or daughter or to care for the child after birth, for placement of a son or daughter with the employees for adoption or foster care or to care for the child after placement, or to care for the employees' parent with a serious health condition.

The regulations also explain that if the husband and wife both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the husband and wife would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes. For example, if each spouse took 6 weeks of leave to care for a healthy, newborn child, each could use an additional 6 weeks due to his or her own serious health condition or to care for a child with a serious health condition. The regulations also note that many state pregnancy disability laws specify a period of disability either before or after the birth of a child; such periods would also be considered FMLA leave for a serious health condition of the mother, and would not be subject to the combined limit. --David J. Sullivan