Can parents of sick child take simultaneous leave under the FMLA?
Issue:

Ward and Nancy work for the same company. They are married and have a young son. When they learned that their son needed surgery, they both separately requested unpaid leave in order to be with him during his surgery and while he recuperated. However, they were notified that "company policy does not grant FMLA protection to both parents to care for the same family member on the same date.” Notwithstanding this policy, Ward and Nancy both took off work for the same six-day period. When they returned to work, both were informed that they had been absent without leave and could be subject to further discipline. They are threatening to sue under the Family and Medical Leave Act. Can an employer limit the FMLA leave of a husband and wife who both request simultaneous leave to care for the same child who has a serious health condition?
Answer:    

No. Under similar facts, a federal district court in Ohio ruled that an employer’s policy denying FMLA protection to both parents to care for the same family member on the same date violated the FMLA. The court concluded that Congress intended to permit spouses employed by the same employer to take simultaneous FMLA leave in this situation and enjoined the employer from disciplining the employees.

The FMLA allows employers to limit FMLA leave of spouses only when a child is born or adopted, or to care for a sick parent. Employers are not permitted to aggregate the workweeks for spouses who need to care for a sick spouse or a child. Each spouse is entitled to 12 separate workweeks of leave per 12 month period to care for the other spouse or child, although neither the law nor the regulations address the issue of simultaneous leave. Looking at relevant provisions, the court concluded that Congress intended to permit spouses employed by the same employer to take simultaneous FMLA leave. “Otherwise, parents would have to choose which parent was to be by the bedside of their sick child and which had to work. To find otherwise would be in direct contrast to the purposes of the Act.”

Cite: Werner v. Ford Motor Company (SDOhio 2007) 154 LC ¶35,279.
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