Previously in this series of blog posts relating to the federal Family and Medical Leave Act (“FMLA”), we discussed which couples do not have FMLA rights under the definition of “spouse,” as well as the limitations that can be placed on couples’ leave rights when both spouses work for the same employer.
To wrap up this series, we ask a “couples” question that you may have been thinking but were afraid to ask: Do I have to let my employee take leave to care for a covered family member (such as a child or parent), when the employee has a stay-at-home spouse who may be available to provide the necessary care?
The bottom line: Yes.
The FMLA provides a right to eligible employees to take leave for qualifying reasons. In other words, if the employee is eligible for leave, the leave is needed for a reason covered by the FMLA, and the employee has leave time available, then the employee is entitled to take the leave.
There are no qualifiers on this right relating to whether the employee is the only person who can provide the necessary care. In fact, the DOL thought of this because the regulations expressly state that, “[t]he employee need not be the only individual or family member available to care for the family member or covered servicemember.”
Of course, if someone else is available to provide the care, an employee may choose not to take FMLA leave, especially when such leave will be unpaid. But that decision is the employee’s to make.