OFLA and FMLA Leave When Husband and Wife Work for the Same Employer
 
 
The federal Family and Medical Leave Act of 1993 (FMLA) and the Oregon Family Leave Act (OFLA) provide protected time off for eligible employees who have certain qualifying conditions or events. Employers with 25 or more employees in Oregon are covered by OFLA, and employers with 50 or more employees in the country are covered by FMLA. When both FMLA and OFLA apply, employers must follow the stricter standard -- the law which is most beneficial to the employee. When a husband and wife work for the same employer, special rules apply.
 
Q. My employees Bill and Hillary are married and are planning to take family leave after the birth of their child. What rights does the federal Family and Medical Leave Act of 1993 afford a husband and wife who work for the same employer?
A. Normally, employees are each entitled to 12 weeks of protected leave during a 12-month leave year for qualifying events. But under FMLA, and husband and wife working for the same employer are in some cases limited to the aggregate of 12 weeks in a leave year. The relevant section of the federal regulations is 29 CFR §825.202:

How much leave may a husband and wife take if they are employed by the same employer?
(a) A husband and wife who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken:
(1) for birth of the employee´s son or daughter or to care for the child after birth;
(2) for placement of a son or daughter with the employee for adoption or foster care, or to care for the child after placement; or (3) to care for the employee´s parent with a serious health condition.
(b) This limitation on the total weeks of leave applies to leave taken for the reasons specified in paragraph (a) of this section as long as a husband and wife 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 12 weeks of FMLA leave.
(c) Where the husband and wife both use a portion of the total 12-week FMLA leave entitlement for one of the purposes in paragraph (a) of this section, the husband and wife would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for a purpose other than those contained in paragraph (a) of this section. For example, if each spouse took 6 weeks of leave to care for a healthy, newborn child, each could use an additional 6 weeks due to his or her own serious health condition or to care for a child with a serious health condition. Note, too, that many State pregnancy disability laws specify a period of disability either before or after the birth of a child; such periods would also be considered FMLA leave for a serious health condition of the mother, and would not be subject to the combined limit.

Q. What does the Oregon Family Leave Act say about the leave time available to a husband and wife working for the same employer?
A. OFLA does not specifically address the rights of a husband and wife per se, but does speak to the issue of "two family members" working for the same employer. OFLA, unlike FMLA, does not limit the amount of leave such employees may take, but does limit their right to take leave concurrently. In other words, under OFLA, the two family members (or spouses) could each take 12 weeks of leave for covered events, but may be required in some situations to take leave at different times. ORS 659.478(3) states:

When two family members work for the same covered employer, the employees may not take concurrent family leave unless:
(a) One employee needs to care for the other employee who is suffering from a serious health condition; or (b) One employee needs to care for a child who has a serious health condition while the other employee is also suffering a serious health condition. OAR 839-009-0240(c) adds that an employer may nonetheless choose to allow the two family members to take concurrent leave.

Q. Our company is covered under OFLA and FMLA, so what´s the upshot? Do Bill and Hillary each get to take 12 weeks of parental leave for bonding time with the newborn baby? Are they limited to 12 weeks between them? Can we require them to take the leave at different times?
A. As stated earlier, employers covered by both OFLA and FMLA must apply the stricter standard in cases where the two laws have conflicting provisions. This can yield some surprising results. The FMLA regulations limit Bill and Hillary to 12 weeks of parental leave in the aggregate, but they are each entitled to 12 weeks of OFLA parental leave. Similarly, OFLA would allow you to refuse concurrent leave to Bill and Hillary and require them to stagger the parental leave, but FMLA does not impose such a restriction on employees. Since the leave is FMLA-covered, Bill and Hillary could choose to take concurrent parental leave until they exhaust their aggregate 12 weeks of FMLA leave. The upshot, taking the more beneficial provisions from each law, is that if your employees choose to do so, they are each entitled to 12 weeks of parental leave, and are entitled to take the FMLA-covered portion of the leave concurrently.
 


 
 

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The Technical Assistance for Employers unit offers employer seminars, handbooks, and other materials covering a number of topics. For additional information, visit our website at www.oregon.gov/boli/ta  or call our Employer Assistance line.

 

Technical Assistance for Employers

Bureau of Labor and Industries

800 NE Oregon Street, Suite 1045

Portland , OR 97232

(971) 673-0824

www.oregon.gov/boli

These materials were prepared as a general summary and teaching guide. The mission of the Technical Assistance for Employers Program is to promote compliance with civil rights and wage and hour laws through education. Technical Assistance does not provide legal advice. In order to determine the legality of any matter or to protect your legal rights, you should contact an attorney. Check the yellow pages of your telephone directory or contact the Oregon State Bar Lawyer Referral Service at 1-503-620-0222 or 1-800-452-7636. THIS INFORMATION IS AVAILABLE IN AN ALTERNATE FORMAT.