Not according to the Department of Labor. When it comes to the ability of an employee to take leave on an intermittent or reduced leave schedule basis, it appears that the DOL forgot to include spouses.
By statute, the FMLA permits an eligible employee to take leave intermittently or on a reduced leave schedule basis in order to care for a spouse, son, daughter, or parent with a serious health condition. 29 USC 2612(b)(1).
The new DOL regulations, however, say something a bit different. According to Section 825.202(b)(1), intermittent leave (what happened to a reduced leave schedule?) may be taken for a serious health condition of a parent, son, or daughter, or for the employee's own serious health condition...which requires treatment periodically, rather than for on continuous period of absence..." No spouse.
Similarly, Section 825.202(b)(1) provides that intermittent leave or leave on a reduced leave schedule (nice of you to show up) taken because of one's own serious health condition, or to care for a -- wait for it-- parent, son, or daughter with a serious health condition...there must be a medical need for the leave...
Again, spouse is not included as a covered family member for purposes of serious health condition intermittent or reduced schedule leave.
The last sentence of
Section 825.202(b indicates that medical necessity includes leave to
provide care or psychological comfort to a covered family member with
a serious health condition. This might be evidence that spouse is
covered. The counter argument would be that "covered family member"
appears later in the same paragraph that limits the coverage to
employee, parent, son, or child, and, therefore, it means only those
family members and not spouse. The same argument would apply to the
generic reference to "family member" in 825.202(b)(2).
Comment: Title I Employers' would be well-advised to follow the
statute and allow eligible employees to take leave on an intermittent
or reduced leave schedule to care for a spouse with a serious health
condition, all other conditions being met.
I suggest that the DOL at least issue an advisory opinion clarifying the issue.
The regulation does not apply to federal employers and employees covered by Title II.