Spousal Care FMLA Leave Calls for Empathy from Employers

Employers should keep empathy front and center when handling spousal care Family and Medical Leave Act (FMLA) time off. Ensure employees requesting spousal care FMLA time off are eligible for FMLA leave, and mind other requirements of the law. Above all else, be kind.

“Caring for an ill spouse is a mountain of responsibility and stress,” said Karen O’Connor, an attorney with Stoel Rives in Portland, Ore. “Helping your employee through a difficult time is not just the human thing to do, it will also build deep and abiding employee loyalty.”

Initial Steps

Employees who are eligible for FMLA leave may take FMLA leave to care for a spouse with a qualifying serious health condition. Stacy Bunck, an attorney with Ogletree Deakins in Kansas City, Mo., explained that FMLA eligibility means the employee:

• Works within 75 miles of a location with at least 50 employees.
• Has worked at least 1,250 hours in the last 12 months.
• Has worked for the employer for at least 12 months.

When it seems the need for leave may be FMLA-qualifying, HR should ensure the employee timely receives the U.S. Department of Labor’s (DOL’s) WH-381 Notice of Eligibility and Rights and Responsibilities along with the DOL’s WH-380-F, Certification of Health Care Provider for Family Member’s Serious Health Condition—or the company’s equivalent version of those documents, said Alexis Knapp, an attorney with Littler in Houston.

The aggregate of 12 weeks of leave for spouses employed by the same employer applies only if the spouses are taking leave to bond with a child after birth, adoption, or foster care placement or to care for a parent with a serious health condition, noted Josh Seidman, an attorney with Seyfarth in New York City.

Emily Litzinger, an attorney with Fisher Phillips in Louisville, Ky., said that “spouse” can be defined as a husband or wife and includes in a common law or same-sex marriage as well as those marriages entered into outside the U.S., if the marriage could have been entered in at least one state.

“The FMLA does not cover leave to care for a domestic partner with a serious health condition,” despite state family and medical leave laws that cover such absences, Seidman said.

Voluntary Programs

Many employers elect to offer a leave of absence program to more employees than legally may be entitled to leave under the FMLA, according to Jennifer Long, an attorney with Duane Morris in Chicago. “This often may include extending spousal FMLA leave to all types of domestic partner relationships,” she said.

Leave that does not technically qualify for FMLA leave can’t count against the employee’s FMLA entitlement, Knapp added.

If, for example, an employer provides leave to an employee to care for a significant other who does not meet the FMLA’s definition of “spouse,” the leave isn’t FMLA time off.

“Thus, if the employee were to experience a true, FMLA-qualifying event in the same 12-month period, the full FMLA entitlement would still be available to the employee for that second reason,” she said.

Educate and Empathize with Employees

HR and management should be on the lookout for the need for spousal care FMLA leave, Knapp said.

While employees may realize they have FMLA leave available for their own medical conditions, “they don’t always realize it is available for care of a spouse,” she said. “If they are signaling a need for leave for this reason, the burden on employers is fairly heavy to make sure these employees get directed to the FMLA process.”

An employee may take leave intermittently or on a reduced schedule for spousal care FMLA leave. “Even where the taking of such time off is inconvenient for the organization, the employer is nevertheless required to make that leave available to an eligible employee, if the leave is properly certified,” Knapp said.

Providing care for a spouse or other family member under the FMLA is a broader concept than some employers understand, she said.

“While providing medical care certainly counts, the regulations are clear that it also includes taking care of other basic needs, too,” she said. This may include eating, bathing, dressing and such tasks as transporting the spouse to medical appointments and providing psychological comfort and reassurance.

It’s important to distinguish between caring for the spouse and other responsibilities, O’Connor said. “While providing care and support to the spouse is a covered reason for leave under the FMLA, performing that spouse’s other duties at home is not,” she said.

For example, if the spouse is a stay-at-home parent and the employed spouse requests spousal care FMLA leave for child care reasons, that technically isn’t covered by the FMLA.

“Be careful, though, wading into those waters,” O’Connor said. “You should work closely with your counsel if you suspect the leave is being abused.”

Knapp said she hears fewer concerns about misuse of spousal care FMLA leave than other types of FMLA leave.

O’Connor cautioned that employers shouldn’t assume that the job of the employee on spousal care FMLA leave is no longer needed because other employees fill the gap while the employee is out.

“Employees often will go the extra nine yards to help a co-worker in a difficult situation,” she said. “That doesn’t mean they can—or should have to—shoulder that load permanently.”