Unmarried co-workers, childbirth and FMLA leave

Q. Two of our employees (they aren’t married) are having a child together. I know that spouses who work for the same company have to share the 12 weeks of FMLA leave following the birth of a child. Is that also true for unmarried parents in the same workplace? — D.J., Ohio

A. FMLA regulations say a husband and wife who are eligible for the FMLA and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave following the birth of their child.

The regulations define a spouse as “a husband or wife or recognized under state law for purposes of marriage in the state where the employee resides, including common-law marriage in states where it is recognized.” Assuming the unmarried parents are not recognized as common-law spouses and are eligible for FMLA leave, each employee would be entitled to 12 weeks of unpaid leave to care for the child.

Leave for the birth and care of a newborn child, however, must conclude within 12 months of the birth. An employer also may request that the employee provide reasonable documentation confirming the family relationship (i.e., a simple statement from the employee or a child’s birth certificate).