The FMLA and Sick Children

Kegler Brown E-mployment Alert

Do you have married couples that work for you? If so, what happens if they have a sick child - are both parents allowed to take FMLA leave at the same time?


(a) No - that’s what they pay nurses for.
(b) Yes - because neither of the employees works very hard even when they are here.
(c) I refuse to answer on the ground that it may incriminate me.

The federal district court for the Southern District of Ohio recently answered this question in the case of Werner v. Ford Motor Company, 2007 U.S. Dist. Lexis 28744 (S.D. Ohio 2007). The court concluded that Congress intended to allow both spouses, employed by the same company, to take FMLA leave at the same time when a child is sick.

In this case, the child was scheduled for surgery and both parents called off work to be with their son during his surgery and recovery. The company said that it did not grant FMLA leave to both parents to “care for the same family member on the same date.” The district court ruled that the company’s policy violated the FMLA:

“[T]he court finds that it was Congress’ intent to permit spouses employed by the same employer to take simultaneous leave under the FMLA. Otherwise, parents would have to choose which parent was to be by the bedside of their sick child and which had to work.”