Leave Policy/Compliance

Mastering Tough FMLA Issues: When Spouses Work for the Same Company

This article series addresses some of the most confusing real world problems surrounding the Family and Medical Leave Act (FMLA). In the last installment, we focused on managing intermittent and reduced schedule leave and how fluctuating work schedules are impacted. In this installment, we’ll look at FMLA leave regarding spouses who work for the same company.


When both husband and wife work for the same employer, the amount of leave available to them is limited to an aggregate of 12 weeks for “bonding” (the birth, adoption, or foster care placement of a child), for a qualifying exigency, and for leave to care for the employee’s parent with a serious health condition.

However, if the leave is for the care of a sick child, to care for the other spouse, or for the employee’s own serious health condition, each spouse is allowed 12 weeks’ leave, less any bonding leave taken by that spouse.


John and Jane Doe both work at ABC, Inc. When their daughter is born, they can take 6 weeks of leave to care for the newborn. John and Jane have now exhausted their 12-week “bonding” leave allotment. However, they each have 6 or more weeks of available leave for other qualified purposes. Thus, if John suffers a back injury later in the year, he can take up to 6 weeks of leave (depending, of course, on medical necessity).

Military Caregiver Leave

Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 26 workweeks of leave during the single 12-month period if the leave is taken for the birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement, to care for the employee’s parent with a serious health condition, or to care for a covered service member with a serious injury or illness.

This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as both spouses are employed by the “same employer.” It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 26 workweeks of FMLA leave.

Remember: Although same-sex marriage is now recognized in every state, domestic partnerships and civil unions are still not legally recognized as marriages for the purposes of the FMLA and, as a result, do not fall under the federal FMLA’s definition of a “spouse.”

In the next installment, we’ll cover the confusion surrounding substitution of paid leave.