House Bill Would Ban FMLA Cap for Same-Employer Spouses

A bipartisan bill in the House of Representatives seeks to eliminate a provision of the Family and Medical Leave Act (FMLA) that limits leave for certain married couples.  

As it stands, under the FMLA, if two workers are married and work for the same organization, their employer is allowed to cap their combined leave at 12 weeks. By contrast, “if a couple does not work for the same employer (or does but is not married), they are not subject to this limitation,” and are each entitled to 12 weeks of job-protected leave, said Alissa Griffin, an attorney with Neal, Gerber & Eisenberg LLP in Chicago. 

The purpose of the shared cap was to protect employers from experiencing the undue hardship of granting extensive leave to two employees at once. In doing so, it also “ensure[d] that employers were not discouraged from hiring married couples” due to the potential for spouses taking long-term leave at the same time, Griffin explained. 

Toolkit: Navigating the FMLA: A Practical Toolkit for HR

FAIR Leave Act 

Whatever its intentions, the shared cap has been under scrutiny for years. These days, it is “generally understood that both parents should be able to spend time away from work for family-related obligations,” Griffin said. 

Introduced in July 2023, the FAIR Leave Act (short for Fair Access for Individuals to Receive Leave Act) would amend the FMLA by permitting each spouse to take the full 12 weeks of FMLA leave for the birth or placement of a child, or to care for seriously ill relatives. Specifically, the bill would repeal Section 102(f) of the FMLA, which, as Griffin pointed out, is the part that delineates the shared 12-week cap for spouses employed by the same organization. 

The bill, which has not been discussed in the current congressional session, would bring federal FMLA rules more in line with how some state laws operate. In 2023, California amended the California Family Rights Act (CFRA) to eliminate the leave limitation for parents who have the same employer. The current CFRA allows both parents 12 weeks of leave and does not discriminate between married and unmarried parents. 

“The general trend today is to recognize that both spouses require time off after welcoming a new baby or to care for a loved one,” Griffin said. “Employers already are trending towards offering more expansive leave benefits as a means of attracting and retaining top talent.”

Research: SHRM 2025 Employee Benefits Survey

Impact on Employers 

Should the FAIR Leave Act become law, employers will need to update their FMLA policies to ensure compliance.  
“Practically speaking, employers who employ married couples should be mindful of staffing and scheduling needs should two employees require leave at the same time,” Griffin said. For example, if an employee is expecting a child, and their spouse also works at the organization, the employer should be aware of the possibility that both will take 12 weeks of leave. 

However, “it may be the case that many employers already provide a full 12 weeks of job-protected leave, regardless of whether the employee is married to another employee or not,” Griffin said. It could be that “the employer chose to offer an option as a benefit which exceeds the legal requirement.”

If the FAIR Leave Act becomes law, there will likely be accompanying guidance and regulations, which employers should take note of and seek assistance from counsel as needed.