Got married employees? New bill would close FMLA loophole requiring shared leave

Posted August 4, 2023

Spouses working for the same employer would no longer be required to share leave under the federal Family and Medical Leave Act (FMLA) if a new bill passes.

Bipartisan members of Congress introduced The Fair Access for Individuals to Receive (FAIR) Leave Act (S 2574; H 5037) on July 27, 2023. The bill would allow married employees at an organization to each have 12 weeks of FMLA leave per leave year, as long as they are both eligible and the reason qualifies.

Currently, the FMLA mandates spouses working for the same company share leave in certain circumstances.

What is The FAIR Leave Act?

The FAIR Leave Act would amend the FMLA so that each spouse could take up to:

• 12 weeks of unpaid, job-protected leave without restriction,
• 26 weeks unpaid, job-protected leave to care for a covered service member with a serious injury or illness.

Congresswoman Katie Porter, one of the sponsors of the bill, indicated that the bill “…improves federal leave policy by closing a loophole that boxes out certain Americans based on their marital status.”

Reasons employees must share FMLA leave

Currently, eligible spouses who work for the same employer are limited to a combined total of 12 workweeks of leave in a 12-month period for the following FMLA-qualifying reasons:

• To bond with a newborn child,
• To bond with a child newly placed with the employee through adoption or foster care, or
• To care for a parent with a serious health condition.

Eligible spouses who work for the same employer are also limited to a combined total of 26 workweeks of leave in a single 12-month period to care for a covered service member with a serious injury or illness (commonly referred to as “military caregiver leave”) if each spouse is a parent, spouse, son, daughter, or next of kin of the service member.

When spouses take military caregiver leave as well as other FMLA leave in the same leave year, each spouse is subject to the combined limitations for the reasons for leave listed above.

Next steps

The bill was referred to committees for consideration and is supported by the National Partnership for Women and Families, the Bipartisan Policy Center Action, the Association of Maternal and Child Health Programs, Paid Leave for All, Center for Law and Social Policy (CLASP), and the March of Dimes.

Other bills amending the FMLA have not made it through the current Congress. While this one might illustrate the continuing trend in expanding the FMLA, its chance of being enacted is slim.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.