Earlier this spring, a bipartisan group of representatives introduced a bill that would change how the Family and Medical Leave Act (FMLA) applies to spouses working for the same employer.

The FAIR Leave Act, which was introduced by Representatives Sarah McBride (D-DE), Brian Fitzpatrick (R-PA), and Haley Stevens (D-MI), would repeal a provision of the FMLA that limits the amount of leave spouses who work for the same employer can take for certain leave reasons.

Limitations on FMLA for Married Couples

Under current law, spouses who work for the same employer are limited to a combined 12 workweeks in a 12-month period for the birth and bonding of a child, placement of a child for adoption or foster care, and caring for a parent with a serious health condition. Similarly, if FMLA is needed to care for a covered servicemember (often referred to as military caregiver leave), both spouses are entitled to a combined total of 26 workweeks in a 12-month period.

This is sometimes referred to as the marriage penalty since the same limitation does not exist for unmarried couples working for the same employer. However, that wasn’t the intent of the provision when FMLA was made law. Limiting the amount of time off was intended to reduce the burden on employers who hired spouses who later decided to have children.

How Does This Work in Practice?

Tim and Jane are married and work for the same employer, a big-box retailer. Tim works at a local store location. Jane works at the regional distribution center. They both are eligible for FMLA. Jane recently gave birth to their son and took 6 weeks of FMLA for bonding with the child. Earlier this year, Tim took 4 weeks of leave under FMLA to care for his father, who was terminally ill.

How much FMLA can Tim take for bonding with his newborn child? Tim is entitled to 2 weeks of FMLA for bonding with his child. Why? Because, combined, Tim and Jane had already taken 10 workweeks of FMLA for bonding and/or caring for a parent with a serious health condition. If Tim and Jane were not married, Tim would be able to take up to 8 workweeks of FMLA to bond with his newborn son.

Repeal of Limitations on FMLA for Spouses Working for Same Employer

If passed, the FAIR Leave Act would remove that limitation, allowing each spouse to receive a full 12 workweeks of unpaid, job-protected leave for all qualified leave reasons under FMLA.

Under FMLA, eligible employees of covered employers can take up to 12 workweeks of unpaid, job-protected leave for:

• The birth of a child or the placement of a child with the employee for adoption or foster care
• The care for a child, spouse, or parent who has a serious health condition
• A serious health condition that makes the employee unable to work
• Certain reasons related to a family member’s military deployment

Additionally, eligible employees can take up to 26 workweeks of FMLA leave to care for a family member who is a current service member or recent veteran with a serious health condition.

Conclusion

Ultimately, the FAIR Leave Act aims to rectify an unintended consequence of the limitation on FMLA for spouses, ensuring that married couples who work for the same employer are provided with the same flexibility and job protection as their unmarried counterparts.

By: Audra L. Parton, JD

Interested in learning more about FMLA? Join us for our upcoming webinar, Fundamentals of FMLA, on Wednesday, August 13, 2025.