In a prior post, we discussed which couples do not have federal FMLA rights under the new regulatory definition of “spouse.” Now that we know who can and can’t take FMLA leave as a husband or wife, the next question is: What limitations May an employer can put on FMLA leave when both spouses work for that employer?

  • Eligible spouses are entitled to a combined total of 12 weeks of leave (i.e., not 12 weeks each) during the applicable 12-month period for leave taken:
    • For the birth or placement of a child;
    • To care for the child after birth; and/or
    • To care for an employee’s parent with a serious health condition.

Note that this limitation applies only to the identified reasons for leave. This limitation does not apply, for example, with respect to leave to care for an employee’s child with a serious health condition. In that situation, both parents would be permitted to take up to 12 weeks of leave each to care for the child.

  • Eligible spouses are entitled to a combined 26 weeks of leave during the applicable 12-month period for leave taken for a combination of military caregiver leave and one of the foregoing reasons.
  • Where spouses use a portion of their entitlements for the foregoing reasons, they are each entitled to the difference between the amount of leave they have taken individually for such reasons and the 12 (or 26) weeks of leave for other purposes.

So, to look back at the example of the child with a serious health condition above, if both parents took six weeks to bond with that child after birth, each parent would still have six weeks of FMLA leave in the applicable 12-month period available to care for the child if the child became sick with a serious health condition.