FMLA Articles

Bill would eliminate the FMLA “sharing” provision

Married employees would get full leave for all qualifying reasons In mid-November, the Fair Access for Individuals to Receive (FAIR) Leave Act was introduced in Congress. If passed, the bill would provide that married couples who work for the same employer are not restricted in the amount of leave they can take under the Family and Medical Leave Act (FMLA); they would be able to take 12 weeks of FMLA leave each, for a total of 24 weeks between them. Without fanfare, the measure would simply repeal the provision from the law. Currently, employers may require that married employees share the 12 weeks of FMLA leave if that reason is taken for bonding with a healthy child or to care for a parent. Married employees may also be required to share the 26 weeks of FMLA leave taken to care for a covered servicemember with a serious injury or illness. The FMLA currently does not otherwise limit married employee’s leave when taken for the following reasons: • The care of a spouse or son or daughter with a serious health condition; • A serious health condition that makes the employee unable to perform the essential functions of his or her job; and • Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty. Married employees would continue to be entitled to a full 12 weeks of FMLA leave for these reasons. While not all employers have married couples working for them, many do, and this bill would eliminate one of the FMLA’s provisions that can help get a handle on leave. Proponents of the measure consider the marriage provision a marriage penalty or a loophole. Opponents likely do not consider the provision a loophole, but a way to help balance the needs of both employers and employees. Smaller employers might be more sensitive to the effects of such a change, as they have a harder time ensuring that the work gets done when employees are away. Both the House and the Senate introduced related, bipartisan bills. This is not the first time such a bill has been introduced, as it was contemplated last year, and did not make it to fruition. The current measures have been referred to respective committees. The chance of it making it across the finish line is slim at best, but it depicts the continuing efforts to amend the law to provide greater benefits to employees. Such actions are worth watching as they could eventually lead to employers having to change policies and practices regarding the FMLA. It took the FMLA several years of being introduced before it was passed. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content. This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


The J. J. Keller LEAVE MANAGER service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA and leave requirements.