Intermittent FMLA & Omitted Spouses

Q: May employees take FMLA intermittent leave to care for a sick spouse?
A: Since 2009 the regulations haven't authorized it, but they may soon.

The US Department of Labor (DOL) proposed new rules for the Family and Medical Leave Act (FMLA) on January 30, 2012. Besides expanding family leave benefits for veterans, they also correct a previously existing anomaly that was likely a mistake.

In 2008, the DOL last revised its FMLA regulations after Congress amended the law to provide coverage for military families. Although the FMLA law permits intermittent leave for employees to care for their sick spouses, the DOL's 2008 FMLA regulations erred by leaving "spouses" off the list of relatives for whom employees may take take intermittent leave.

Specifically, 29 CFR §825.202(b) provides the list of relatives employees may take intermittent leave to care for when they're sick. And while it lists "parent, son, or daughter," it doesn't mention spouses. Similarly, §825.202(b)(1) says:

"Intermittent leave may be taken for a serious health condition of a parent, son, or daughter, for the employee's own serious health condition, or a serious injury or illness of a covered servicemember...."

(There's some evidence that leaving spouses out of §825.202 was a mistake rather than intentional. For example, §825.204(a) specifically mentions transfers as being permissible to accommodate intermittent leave taken for a spouse.)

The DOL's 2012 proposed regulations corrects this error by adding "spouse" to the list. According to the DOL's "Section-by-Section Analysis":

"The Department also proposes to correct inadvertent drafting errors that were made in the 2008 final rule, including correcting the cross-references in current §825.200(g) and (f), and inserting the word 'spouse' in the first lines of §825.202(b) and (b)(1)."