My spouse and I work for the same employer; can our employer reduce our FMLA leave?

Question

My wife and I work for the same company. She was recently diagnosed with breast cancer and needs time off for surgery and chemotherapy. I plan to care for my wife after her surgery. We sat down with our HR rep to talk about the time off we will need. She told us that we are eligible for FMLA leave, but that we may only take 12 weeks off combined—not 12 weeks each—because we are married. Does the FMLA allow employers to reduce leave for married couples like this? It seems like discrimination.

Answer

The federal Family and Medical Leave Act (FMLA) does allow employers to limit leave time for married couples, but not in your situation. On that point, your HR representative is wrong. You each have the right to 12 weeks of leave for your wife's serious health condition.

The FMLA gives eligible employees the right to take up to 12 weeks off, unpaid, to recuperate from or seek treatment for a serious health condition or to care for a family member with a serious health condition (among other things). As long as you are eligible for leave and you meet the law's notice and certification requirements, you are entitled to time off, continued health insurance benefits during your leave, and reinstatement when your leave is through.

It sounds like your HR representative is confused about a different provision of the law. The FMLA allows employers to limit the leave available to married couples who work for the company, but only for the following types of leave:

  • leave to bond with a new child (also called "parental" leave), and
  • leave to care for a parent with a serious health condition.

For these types of leave, the employer may limit the married couple to a combined 12 weeks of leave. However, each spouse has the right to use the remainder of his or her leave for other FMLA-qualified purposes. For example, supposed a married couple is expecting a new child, and the mother and father want an equal amount of time off for bonding. The employer may limit each spouse to six weeks of parental leave. However, the mother could use her remaining six weeks of leave for a pregnancy-related serious health condition.

Although this may sound like a "marriage penalty," the intent of this rule was to make sure employers didn't discriminate against married couples in hiring. Without the restriction, the law's drafters worried that employers would avoid hiring married couples for fear of them having children and being out on leave for several months at the same time. Interestingly, though, the law doesn't allow employers to limit parenting leave for unmarried couples working for the same employer.

Because you and your wife are not using parenting leave, this exception doesn't apply. Each of you is entitled to 12 weeks of FMLA leave, your wife for her own serious health condition and you to care for a spouse with a serious health condition. Schedule another meeting with your HR representative right away to clear this up.

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