Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 5

Heeeeeres Jarrod . . . Again.

Now what if spouses work for the same employer, can they each take 26 weeks to care for a covered servicemember or for other qualifying leave? This may seem fair because they’re separate people, but let’s take a look.

(f) Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 26 workweeks of leave during the single 12-month period described in paragraph (e) of this section if the leave is taken for birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement, to care for the employee’s parent with a serious health condition, or to care for a covered servicemember with a serious injury or illness. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 26 workweeks of FMLA leave.

29 CFR § 825.127(f)

The answer to the above question is no. If both spouses are eligible for FMLA leave, and are employed by the same employer, they are entitled to a combined 26 workweeks (or 12 weeks if that is applicable) of leave within one 12-month period for the reasons listed including to care for a covered servicemember with a serious injury or illness.

Lastly, how should leave taken be designated by the employer?

(1)  In all circumstances, including for leave taken to care for a covered servicemember, the employer is responsible for designating leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the designation to the employee as provided in § 825.300. In the case of leave that qualifies as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition during the single 12-month period described in paragraph (e) of this section, the employer must designate such leave as leave to care for a covered servicemember in the first instance. Leave that qualifies as both leave to care for a covered servicemember and leave taken to care for a family member with a serious health condition during the single 12-month period described in paragraph (e) of this section must not be designated and counted as both leave to care for a covered servicemember and leave to care for a family member with a serious health condition. As is the case with leave taken for other qualifying reasons, employers may retroactively designate leave as leave to care for a covered servicemember pursuant to § 825.301(d).

29 CFR § 825.127(e)

Employee notice requirements under 29 CFR § 825.300 will be covered in a future post, and believe me you don’t want all that information crammed here anyway. Other than that, the crux of the language above basically says that in the event that care for a servicemember also qualifies as care for a family member with a serious health condition, the care needs to be designated as leave to care for a covered servicemember. The leave should not be designated as both leave to care for a servicemember and leave to care for a family member with a serious health condition.

That about wraps things up regarding circumstances when an eligible employee is entitled to leave. Next, we’ll be looking at the amount of leave employees may take under FMLA.