FMLA and spouses working for the same company

While assisting in the development of a case management tool for approving and tracking leaves a question regarding a portion of the FMLA regs has come up.  Under the 2 spouses working for the same company rules it's stated that spouses can only take a total of 12 weeks between them for leaves related to the birth or placement of a child or to care for a parent.  Until recently we were working under the assumption that the "spouse rule" only applied to the same leave event, but it suddenly dawned on me that the FMLA definition of parent excludes in-laws.  This leads me to believe that the spouse rule applies to ANY events of the types listed that occur within the FMLA year.  Is that correct?  Assuming that it is, does the spouse rule apply to the two different types of leave independently or does a spouse taking 8 weeks of parental FMLA only leave 4 weeks of time available to be split between the spouses for the birth of a child?


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  • A husband and wife who are eligible for FMLA leave and who 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 for birth of the employee's child or to care for the child after birth, for placement of a child 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 leave for a qualifying exigency.  Note also that some state FMLA's expand the covered family members to in-laws, grandparents, etc. 

    DOL stated in the most recent FMLA regs:

    Where the husband and wife both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, 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 other purposes. 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.
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