FMLA Military and Child-Rearing Leave Requirements Not Always Logical

Two recent client questions regarding the Family and Medical Leave Act (FMLA) demonstrate that the law and its regulations are not always logical or intuitive. The first involved whether an employee could take leave under the FMLA to attend her son’s graduation from basic training in the U.S. Marines. The second question had to do with whether an unmarried couple working for the same employer were entitled to a total of 12 or 24 weeks for child bonding leave. The answers may surprise you.

Military Leave

The FMLA regulations provide that “An eligible employee may take FMLA leave for one or more of the following qualifying exigencies: …. (2) Military events and related activities. (i) To attend any official ceremony, program, or event sponsored by the military that is related to the covered active duty or call to covered active duty status of the military member ….” 29 CFR 825.126(b). The definition of “covered active duty or call to covered active duty” includes being “notified of an impending call or order to covered active duty … [which] in the case of a member of the Regular Armed Forces means … deployment … to a foreign country ….”29 CFR 825.126(a).

Imagine that an employee who is requesting the leave, indicates that her son is graduating from bootcamp. The bootcamp graduation is a ceremony sponsored by the military which would seem to qualify for the leave. But that is not the end of the analysis. The remaining question is whether there is any “impending” deployment to a foreign country.

If the employee’s son has already received orders that he will be deployed in a foreign country, the US Dept. of Labor would almost certainly find that attending the ceremony would be a FMLA-qualifying absence. If the son is awaiting orders, but it is understood that he is to be sent to a foreign country (perhaps not yet determined), that would also likely satisfy the requirement for an “impending” deployment. If, however, the son’s orders do not involve being deployed to a foreign country, the leave requested would not be covered (or protected) by the FMLA.

FMLA Leave for Unmarried Couples

The FMLA assures an employee 12 weeks of unpaid leave for the birth and care of a child but limits married couples who work for the same employer a total of 12 weeks combined for such leave. However, if the couple is unmarried, the same restriction does not apply. This is what has become known as the “FMLA marriage penalty.” The U.S. Dept. of Labor acknowledged this anomaly in an opinion letter, which states: “As the statute is currently written, the Department cannot apply the [combined 12-week] restriction on spouses who work for the same employer to similarly situated unmarried couples.” This is an older opinion letter, but the section of the law and regulations dealing with this restriction have not changed.

Bottom line, the unmarried couple would each be able to take 12 weeks (or a total of 24 weeks combined) for FMLA child-rearing leave, while a married couple could only take 12 weeks total combined.

Feel free to call us with any of your FMLA-related questions.