We have 2 siblings in childcare and a new baby. Can I use a dep. care FSA for this childcare while on parental FMLA leave for the baby? This looks unclear per IRS pub 503

[gsmokoski]

IRS documentation says you can only do this for "An absence of 2 weeks or less is a short, temporary ab- sence. An absence of more than 2 weeks may be consid- ered a short, temporary absence, depending on the cir- cumstances." I am not sure if this is an extenuating circumstance, since (1) we are not on leave to care for the older children, and (2) we cannot pull them out of childcare and automatically have them allowed back after this leave, which would be necessary for us to work. If relevant, this would be for a 2-mo leave for the parent with the FSA and a 2-mo leave for the parent without the FSA.

[VictoriaD75]

Regarding reimbursement for dependent care expenses while on FMLA leave, IRS rules require the employee to be gainfully employed or seeking work for dependent care expenses to be eligible for reimbursement. Although there is a safe harbor provision for short-term, temporary absences that do not exceed two weeks, such as a vacation or short-term illnesses, there is no such exception for longer absences, such as those typically covered under the FMLA. Therefore, employees on FMLA leave cannot receive reimbursement for dependent care expenses incurred during a FMLA absence longer than two weeks.