Mom, Dad, and the FMLA: What Co-Worker Spouses May Need to Know

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By Patrick Dorrian

When a married couple who work together have a baby, how much unpaid time off may they take without risking losing their jobs? And if the newborn gets sick, does that change things?

It might surprise some to learn federal law allows employers of co-worker spouses to limit to a combined 12 weeks the amount of leave they may take for the birth of a child and to bond with a newborn. Typically, 12 weeks is the amount of time off every individual worker covered by the Family and Medical Leave Act may use over a 12-month period. Under the law, employers generally must allow an employee to return to the same or an equivalent job when an approved period of leave ends.

That quirk for co-worker spouses, however, means if mom takes 12 weeks of FMLA leave, dad may get none. Or if dad takes 4 weeks, mom may only get eight.

Lawyers who spoke with Bloomberg Law said the issue of combined leave for spouses who work for the same employer doesn’t come up all that much, mostly because not many couples work together. But wives and husbands occasionally do find themselves getting a paycheck from the same employer, especially if they make their living policing our communities, putting out fires, or educating our kids, they said.

In such situations, it’s imperative for both employees and employers to understand their rights and fulfill their obligations under Section 2612(f)(1)(A) of the FMLA, the attorneys said.

‘A Quirky Rule’

“It’s a quirky rule” that was included in the FMLA when it was enacted in 1993 “essentially because Congress was concerned about not overly burdening smaller businesses that may employ married couples,” management-side attorney Jeff Nowak told Bloomberg Law. The FMLA applies to employers with as few as 50 employees spread across multiple locations within a 75-mile radius, he said.

The combined-leave rule for married co-workers is “discretionary,” Chris Langone, who represents workers, said. Employers are free to permit each spouse to take off 12 weeks or more for the birth of a child, he said.

Nowak said another reason cases involving the rule are rare may be that some smaller employers don’t realize they can hold married co-workers to a combined 12 weeks of leave when they have a baby. In addition, he said, some employers are flexible and allow new fathers to take a couple of weeks off in addition to the 12 weeks of FMLA leave taken by their co-worker wife. Nowak is a partner with Franczek Radelet in Chicago.

Julie A. Bruch, who successfully defended Stephenson County, a public employer, over the combined-leave provision, said when problems do arise, it may be the result of employees not being aware their employer has a combined-leave rule. That’s usually “because they don’t read” the employer’s FMLA policy, she said.

‘The Three Ps of the FMLA’

Notice is the key under the combined-leave provision, as it is under the FMLA generally, Langone said. The Chicago-based Langone is the managing partner of Langone, Batson & Lavery.

Employees must give clear, advance notice that they need to take leave and the reason why, he said. But employers similarly must give employees notice of their rights to family and medical leave and any variances in the employer’s policies, Langone said.

Not only may employers allow workers to take more leave than the FMLA authorizes, but workplace family and medical leave requirements, including coverage for new parents, vary from state to state, Langone said. Employer policies must clarify the requirements and allowances for employees, he said.

“It’s the three Ps of the FMLA,” he said. “Policies, paperwork, and posters,” Langone said, referring also to the need for employers to post in their workplaces notices of employee rights.

Employers should have proper notices posted throughout the workplace and should include information about employees’ FMLA rights in their new hire packets, Nowak said. They also should remind employees of their FMLA rights when a need for leave arises or appears to arise, he said.

Issue Arose in Recent Case

In Lyons v. Stephenson County, a federal judge in Rockford, Ill., May 10 rejected claims by a correctional officer that her county employer discriminated against her and interfered with her rights under the FMLA.

Jenny Lyons had been approved for 12 weeks of leave under the law for the birth of her second child. But when Lyons went into labor prematurely, her husband, who was also a county correctional officer, left work and rushed to her side.

He ultimately ended up staying off work for roughly two weeks. The county designated his time away as FMLA leave for the birth of a child and told the couple that his two weeks of FMLA leave had reduced her approved leave time under the statute and its workplace policy from 12 to 10 weeks.

The judge said the county didn’t violate the FMLA. Its workplace policy indicated to Lyons and her husband that the county would combine leave used by married employees for time off with a new child. And the county promptly told her husband and then later Lyons that it was counting his two weeks off as FMLA leave. Those facts put Lyons on notice that the employer would and did apply the combined-leave rule to co-working spouses, the court said.

Lyons’ lawyer saw things differently. “We’re not talking about a huge employer here,” where employees’ personal circumstances aren’t known, Heather L. Carlson told Bloomberg Law.

It’s “disingenuous” for the sheriff’s office to say it didn’t know that Lyons gave birth prematurely, Carlson said. Even though neither Lyons nor her husband expressly communicated that fact to their employer, “it was well-known,” she said.

Case Illustrates Importance of Notice

Lyons also argued that she later told the county she needed two more weeks off because her baby was “put on medication.”

That gave the county notice that her husband’s two weeks off and the two additional weeks she needed were to care for their child’s serious medical condition, Lyons said. And FMLA leave to care for a child’s serious health condition shouldn’t be counted towards the combined 12 weeks co-working parents may be limited to under the law, she said.

“Under the Sheriff’s Office FMLA policy, the employee is obligated to notify the Sherriff’s Office of the need for FMLA due to a family member’s serious medical condition,” the judge said. Lyons’ mention of her baby’s “medication” didn’t do the trick, the judge said.

“What seemed to start the problem here was the employees’ lack of communication,” Bruch said. They didn’t tell the county about “the change in circumstances,” said Bruch, a partner with O’Halloran Kosoff Geitner & Cook, LLC in Northbrook, Ill.

Carlson countered that the county didn’t sufficiently explain its policy to Lyons and her husband. Lyons had taken 12 weeks of FMLA leave for the birth of her first child two years earlier, and the county let her husband take two weeks of leave as well, Carlson said.

The county didn’t have a formal FMLA policy at that time, the judge found. But it adopted one not long after the Lyons had their first baby and the policy included the combined-leave rule, the judge said.

In rejecting Lyons’ claim, the judge found that she was given a copy of the policy, which she kept in her locker at work. Lyons was responsible for knowing the policy’s terms, the judge said.

The change wasn’t adequately communicated to Lyons, Carlson said. Carlson is a partner with McDonald, Woodward & Carlson in Davenport, Iowa.

Notice Obligations Can Get Tricky

“The case underscores the importance” of employees expressly notifying their employer when they want to transition from one type of FMLA leave to another, Langone said. But the combined-leave-for-spouses provision is “confusing,” because it also pertains to leave taken by co-worker spouses to care for a sick parent but not to care for a sick child, he said.

It also doesn’t apply to unmarried co-workers who have a baby, Nowak said. That’s why he refers to the provision as the “FMLA’s marriage penalty,” he said.

Nowak said the Lyons case “is a good one for employers on the issue of notice.” But he and the other attorneys acknowledged that the shifting notice obligations under the FMLA and its combined-leave-for-spouses provision can present challenges for employees and employers alike.

“The takeaway from Lyons for employees is to do your FMLA paperwork early and be specific about the nature of the leave you are requesting,” Langone said. “The best practice for employees is to” hand over your doctor’s note to your employer.

Employees typically “are in the best position to know what’s going on,” Bruch said.

But while the mom’s statement in the Lyons case about her child being put of medication “seemed a little vague,” employers “can’t keep their heads in the sand,” Langone said.

Agreeing, Nowak said employers should be mindful of the need to seek clarification when a situation is unclear. Some courts have found that an employer was put on constructive notice of a worker’s potential need for FMLA leave by things the employee said—or a manager observed—that was short of an express request for leave under the law, he said.

In that sense, Lyons and similar cases may create “a bit of a trap” for employers, Nowak said. He said he counsels his clients “to ask what’s going on.”

Asking Shows Empathy, Compliance

Doing so “shows a sense of empathy” for the workers involved and also demonstrates the employer’s compliance with its legal duties, Nowak said. That may include the job accommodation mandates of the Americans with Disabilities Act in addition to FMLA requirements, he said.

“It’s best to identify the medical condition at issue,” he said.

Employers must take care in doing so, Bruch said. They don’t want to invade employees’ privacy and ask them to needlessly share personal information, she said.

When a situation is unclear, “broader questioning is proper,” she said. Tell the worker you’re seeing problems in their performance that weren’t there before or something similar, and then ask if there’s something the company should know about, Bruch said.

The employee should then say they need help and why, and remind the employer of the need to keep confidential any personal information the employee divulges, Bruch said. She said her firm sometimes provides FMLA training for workers as part of its service for clients. “And that’s what we tell workers” when we provide them with training, she said.

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