Fact Sheet #28L: Leave under the Family and Medical Leave Act When You and Your Spouse Work for the Same Employer

The Family and Medical Leave Act (FMLA) provides job-protected leave from work for family and medical reasons.

When spouses work for the same employer and are both eligible to take FMLA leave, the FMLA provides that they share the amount of leave they may take for some, but not all, FMLA-qualifying leave reasons. This fact sheet explains the amount of FMLA leave available to spouses who work for the same employer.

ABOUT THE FMLA

The FMLA provides eligible employees of covered employers with job-protected leave for qualifying family and medical reasons and requires continuation of their group health benefits under the same conditions as if they had not taken leave. FMLA leave may be unpaid or used at the same time as employer-provided paid leave. Employees must be restored to the same or a virtually identical position when they return to work after FMLA leave.

Eligible employees: Employees are eligible if they:

• Work for a covered employer for at least 12 months,
• Have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and
• Work at a location where the employer has at least 50 employees within 75 miles.

Covered employers: Covered employers under the FMLA include:

• Private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or previous calendar year,
• Public agencies, including Federal, State, and local government employers, regardless of the number of employees, and
• Local educational agencies, including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees.

The FMLA protects leave for:

• The birth of a child or placement of a child with the employee for adoption or foster care,
• The care for a child, spouse, or parent who has a serious health condition,
• A serious health condition that makes the employee unable to work, and
• Reasons related to a family member’s service in the military, including:
  • Qualifying exigency leave –- leave for certain reasons related to a family member’s foreign deployment, and
  • Military caregiver leave – leave when a family member is a current servicemember or recent veteran with a serious injury or illness.

For more information about the FMLA generally, see Fact Sheet #28.

SPOUSES WHO WORK FOR THE SAME EMPLOYER

Generally, the FMLA entitles each eligible employee to take up to 12 workweeks of FMLA leave in a 12-month period for certain family and medical reasons. The FMLA also entitles each employee to take up to 26 workweeks of FMLA leave in a single 12-month period for military caregiver leave. However, under the FMLA, spouses who work for the same employer share the total number of workweeks of FMLA leave available for certain reasons.

Spouses who work for the same employer share a total of 12 workweeks of FMLA leave per leave year for:

• The birth of a child,
• Placement of a child with the employee for adoption or foster care, or
• Care for a parent with a serious health condition.

Spouses who work for the same employer also share a total of 26 workweeks of FMLA to care for a military family member with a serious injury or illness.

Spouses who work for the same employer may each use a total of 12 workweeks of FMLA leave in a leave year for:

• Their own serious health condition,
• To care for a spouse or child with a serious health condition, or
• Due to a qualifying exigency.

Definition of spouse. Under the FMLA, spouse means a husband or wife as defined or recognized in the state where the individual was married, including individuals in a common law marriage and married same-sex couples. Spouse also includes a husband or wife in a marriage that was validly entered into outside of the United States if the marriage could have been entered into in at least one state. Individuals in civil unions and domestic partnerships are not considered spouses under the FMLA and, therefore, do not share FMLA leave when employed by the same employer.

Examples:

• Vaishu and Juan are married. Vaishu works for a chain grocery store and Juan works for the same employer at its regional distribution facility. They are both eligible for FMLA leave and each has 12 workweeks of FMLA leave available when Vaishu gives birth to a healthy, newborn baby.

  Vaishu uses 6 weeks of FMLA leave for her own serious health condition following the birth and an additional 6 weeks of FMLA leave for bonding. Juan also takes 6 weeks of FMLA leave to bond with their new baby and has another 6 weeks or FMLA leave available for other FMLA-qualifying leave reasons.

  Together, Vaishu and Juan use a combined total of 12 workweeks of FMLA leave for the birth of their child, including bonding time. Vaishu also uses 6 weeks of FMLA leave for her serious health condition of giving birth, and Juan has an additional 6 weeks of leave remaining for other FMLA leave reasons in the leave year.

• Morgan and Taylor are married and work for the same construction company. They are both eligible for FMLA leave. Morgan has 12 weeks of FMLA available and needs leave to care for her mother, who is having surgery and will be in the hospital for several days. Taylor previously used 11 workweeks of FMLA leave in the same leave year to care for his father, who has a long-term serious health condition.

  Morgan has 1 week of FMLA leave she may use to care for her mother because she and her spouse share a total of 12 workweeks of leave in a leave year for the care of a parent with a serious health condition. Additionally, she may use up to 11 workweeks of FMLA leave for other FMLA leave reasons in the leave year.

• Rita and Freddie work at the same restaurant and are both eligible for FMLA leave. Rita has 10 workweeks of FMLA leave available and Freddie has 12 workweeks of FMLA leave available when they each request FMLA leave for the upcoming birth of their child. Rita and Freddie live together and are in a long-term relationship but are not married.

  Rita requests 6 workweeks of FMLA leave for pregnancy and recovery from childbirth, and 4 workweeks of FMLA leave for bonding with the baby. Freddie requests 12 workweeks of FMLA leave for bonding with their child. Rita and Freddie’s available FMLA time for bonding with their newborn child is not shared.

• Devon and Sergio are married and work for the same online retailer. They are both eligible for FMLA leave and each has 12 workweeks of FMLA leave available.

  When Devon and Sergio’s child is treated for a serious health condition, they alternate using FMLA leave to provide care for their child. Because FMLA leave for the care of a child with a serious health condition is not shared, they both can use up 12 workweeks of leave for this reason.

For more information about taking FMLA leave for the birth or placement of a child and bonding during the child’s first year, see Fact Sheet #28Q. For more information about taking FMLA leave for a serious health condition or to care for a family member with a serious health, including recovery after childbirth, see Fact Sheet #28P.

ADDITIONAL PROTECTIONS

State Laws

Some States have their own family and medical leave laws. Nothing in the FMLA prevents employees from receiving protections under other laws. Workers have the right to benefit from all the laws that apply.

Protection from Retaliation

The FMLA is a federal worker protection law. Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Any violations of the FMLA or the FMLA regulations constitute interfering with, restraining, or denying the exercise of rights provided by the FMLA. For more information about prohibited employer retaliation under the FMLA, see Fact Sheet #77B and Field Assistance Bulletin 2022-2.

Enforcement

The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. If you believe that your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division or file a private lawsuit against your employer in court. State employees may be subject to certain limitations in pursuit of direct lawsuits regarding leave for their own serious health conditions. Most Federal and certain congressional employees are also covered by the law but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress.