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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| May 30, 2017


QUESTION: My wife and I are expecting our first child in a few weeks. We both work for the same company. We put in for 12 weeks of leave, each, under the FMLA so we can spend time together bonding with our baby. Human Resources says we can’t both have 12 weeks off: One of us can take 12 weeks, or we could both take six weeks. This doesn’t seem right.

ANSWER: It may not seem right, but it is the law. Under the Family and Medical Leave Act (FMLA), spouses who work for the same employer are limited to a combined total of 12 workweeks of leave in a 12-month period for the birth of a son or daughter, caring for a parent with a serious health condition, or when a child is placed with the employees for adoption or foster care. The rationale behind the law is that only one person is really required to care for an infant, parent, or child.

If one spouse is not eligible for FMLA leave, the other spouse would be entitled to the full 12 weeks. If one spouse uses a portion of his/her 12 weeks’ leave – six weeks, for example — for the birth of a child, the remainder of his/her FMLA leave would still be available to him/her if needed for treatment of his/her own serious medical condition, or that of a parent or child.

If you want to share your child’s early weeks together, you can take the advice of your Human Resources representative, and take six weeks each. That way, you would still have leave available if needed later.

Or, if you really, really want to take 12 weeks off together, you could get divorced: Unmarried parents working for the same company do not have to share their leave time.

The United the only developed country that does not require employers to give new parents paid time off following the birth of a child. The FMLA, enacted in 1993, provides unpaid leave. In the U.S., many new parents cannot afford to take time off without pay, and return to work soon after the birth of their child.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile

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Category: Featured Column

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