Adoption Leave: Your Legal Rights

Under the FMLA, you may be entitled to adoption leave. Learn your rights.

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Adoption leave must be properly requested.

Did you know that the Federal Family and Medical Leave Act extends its protections to adoptive and foster parents? Under FMLA, employers must provide up to 12 weeks of unpaid leave to care for a newborn or an adopted or foster child. Although the text of the law is clear in its coverage of our families, some employers have not had experience with adoption-related parental leave. Therefore, it is important for adopting families to educate themselves.

Not Eligible?

Employees who are not eligible for FMLA (see Basic Requirements) are left with whatever benefits their employer chooses to allow. Typically, that means they would use whatever vacation time or other personal leave they have. If your state has family leave laws that are more beneficial than FMLA, however, you may qualify under the state regulations. If you think you may be stuck without sufficient adoption leave, talk to an employment attorney in your state.

What About Dads?

FMLA applies equally to all parents. Thus, adoptive and foster fathers can also take advantage of its benefits. In practice, fewer dads take parental leave than moms. Men who exercise their rights under the FMLA will chip away at the lingering misperception that the father plays a less critical role in early parenting.

Know Your Workplace Rights

+ BASIC REQUIREMENTS: Both you and your employer must fit certain criteria for FMLA to apply. On the employer side, FMLA applies to private sector businesses with at least 50 employees, to all state and local governments, and to all public and private school employees. With respect to individuals, the act applies to employees who have worked for a covered employer for a total of 12 months (not necessarily consecutive), and for at least 1,250 hours in the 12 months preceding the leave.

+ WHEN IT TAKES EFFECT: Eligible employees may take up to 12 weeks of unpaid leave during the 12 months following the birth or placement of a child. The leave can occur any time in that period. If both parents are eligible, the law will allow a newly adopted child to have at least 24 weeks with at least one parent at home full-time. An employer may, but is not required to, allow an employee to take her 12 weeks intermittently, for example, by working half-days for 24 weeks. If a husband and wife work for the same employer, the employer may limit them to a combined total of 12 weeks of leave, unless the child has a serious medical condition, in which case each parent is entitled to take 12 weeks.

+ WHAT ADOPTIVE PARENTS NEED TO KNOW: For any type of adoption, covered employees may begin their leave period before the child comes home, as long as the absence is necessary to the adoption or placement. This is particularly helpful for parents who need to travel to adopt. Early leave can also be used for meetings with attorneys or with prospective birth parents, counseling sessions, doctor visits, and so on.

Employers are entitled to ask for proof that a requested leave qualifies for FMLA. For adoption-related leave, a letter from your agency or attorney should be sufficient.

+ WHAT FOSTER PARENTS NEED TO KNOW: Foster parents are eligible for FMLA leave, as well, regardless of the age of the fostered child. However, there must be some involvement by the state or by a court for the placement to qualify — informal placements with relatives do not count.

If parents adopt a child whom they have fostered, they are probably not entitled to one leave period at the time of the foster placement and another at the time of formal adoption. FMLA would apply at the time of the initial placement.

+ JOB PROTECTIONS: FMLA ensures that employees cannot be penalized for taking leave. That means you must be allowed to return to work at the same level of pay and benefits that you had when the leave began. An employee is not entitled to continue accruing additional benefits during the leave period, but if an employer offers group health insurance, that employer must maintain the insurance during the employee’s FMLA leave.

+ ACCRUED TIME: FMLA allows employees to substitute accrued (sick/vacation/personal) paid time off for a corresponding portion of their leave. And while biological mothers are usually entitled to substitute paid medical disability leave, as well, while they physically recover from childbirth, adoptive mothers are not generally eligible to do so. Employers can also require employees to use accrued vacation or other personal time as part of their 12-week leave period. In other words, you can’t take your usual vacation in addition to 12 weeks of FMLA.

+ BONUS PROTECTIONS: FMLA sets a minimum standard. Depending on where you live, you may be entitled to even greater benefits. Many states have expanded the availability of family leave benefits by requiring smaller businesses to comply, providing that some or all of the leave be paid, or mandating a longer leave period. You can check your state’s laws on the National Conference of State Legislatures site.

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