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VII. Maternity Leave and Adoption or Foster Care
So, what if there is no childbirth to recover from? What if you need time off to go overseas to pick up an internationally adopted child?
What if you have just received a domestically adopted child and would like to take time off to bond and transition to your new family life? What then?!
As we discussed in the FMLA section above, if you and your employer qualify for FMLA leave, you have 12 weeks of FMLA leave available to you for the placement of a child with you for adoption or foster care.
This is available for both the mother and the father. Again, the basic provision of FMLA is for unpaid leave – although your employer can allow you (or require you) to substitute your available paid leave for any portion of the 12 FMLA weeks. The entitlement to FMLA leave for the placement of a child for adoption or foster care generally expires at the end of the 12-month period beginning on the date of the placement.
If the husband and wife are employed by the same covered employer they may be limited to a combined total of 12 weeks of FMLA leave for the placement and care of a child during the 12-month period following placement.
Leave taken for the placement of a child for adoption or foster care may be taken intermittently or on a reduced leave schedule after the placement, only if the employer agrees.
What If I Need Time Off Before The Child is Actually Here?
Obviously, when you are adopting a child, there are many steps in the process. You have appointments with lawyers,
counselors, social workers, agency workers and physicians. You may have court appearances. You may have to travel out-of-town, out-of-state or out of the country to meet your child and then possibly again to pick her up and finally take her home.
FMLA leave taken for adoption or foster care can be taken before the actual placement of the child. The pre-placement absence must be for purposes of arranging the adoption or foster care.
All of the examples cited above would certainly qualify. But don’t forget, these absences will count against your 12 weeks!
What if you have just received a domestically adopted child and would like to take time off to bond and transition to your new family life? What then?!
As we discussed in the FMLA section above, if you and your employer qualify for FMLA leave, you have 12 weeks of FMLA leave available to you for the placement of a child with you for adoption or foster care.
This is available for both the mother and the father. Again, the basic provision of FMLA is for unpaid leave – although your employer can allow you (or require you) to substitute your available paid leave for any portion of the 12 FMLA weeks. The entitlement to FMLA leave for the placement of a child for adoption or foster care generally expires at the end of the 12-month period beginning on the date of the placement.
If the husband and wife are employed by the same covered employer they may be limited to a combined total of 12 weeks of FMLA leave for the placement and care of a child during the 12-month period following placement.
Leave taken for the placement of a child for adoption or foster care may be taken intermittently or on a reduced leave schedule after the placement, only if the employer agrees.
What If I Need Time Off Before The Child is Actually Here?
Obviously, when you are adopting a child, there are many steps in the process. You have appointments with lawyers,
counselors, social workers, agency workers and physicians. You may have court appearances. You may have to travel out-of-town, out-of-state or out of the country to meet your child and then possibly again to pick her up and finally take her home.
FMLA leave taken for adoption or foster care can be taken before the actual placement of the child. The pre-placement absence must be for purposes of arranging the adoption or foster care.
All of the examples cited above would certainly qualify. But don’t forget, these absences will count against your 12 weeks!
What Kind of Documentation Can My Employer Require Before It Approves My FMLA Leave for Adoption?
Just as employers can require physician’s opinions for FMLA leave before or after childbirth, employers can require that you prove somehow that your absence is related to the adoption of a child.
Rather than have a health care provider certify the existence of a medical condition, your employer will likely have your lawyer or your adoption agency complete a certification. The certification will then be submitted with documentation which proves the placement of the child for adoption and the date of the placement.
A new birth certificate, a new passport and/or copies of court orders authorizing the placement (either for adoption or for foster care) will likely suffice – but you should double check with your HR department ahead of time so that there is no delay when you get that call and need to take off immediately to get your child!
Can I Substitute Vacation and Sick Time for My FMLA Unpaid Leave When I Adopt My Child?
Yes and probably no. FMLA allows you to substitute accrued paid time off for unpaid FMLA leave, but you still have meet the usual qualifications for taking that time.
Obviously, you can’t take vacation time you haven’t accrued yet. If you do have several weeks of paid vacation, you can certainly (or your employer can require you to) take that in lieu of but not in addition to unpaid leave.
However, depending on your company’s policies, you may not be able to also take your accrued sick days as paid leave after the adoption of your child. New mothers who have just given birth are generally allowed to take sick leave in order to physically recover from a vaginal birth or caesarean section. Their obstetrician usually orders a certain period of physical limitation to allow for recovery.
This limitation will, in most cases, qualify a mother who has just given birth for the use of accrued sick time.
In the case of an adoption, while you do have the same period of parental bonding as in a case where you have given birth, you will not have the physical recovery and limitation situation.
As long as your employer is consistent with regard to its requirements for a doctor’s certification of an employee’s need for extended sick leave, its refusal to allow an adoptive parent to use sick days will be allowable under the law. You should certainly be allowed to use accrued sick time if your newly adopted child has medical issues.
Do I Get FMLA Benefits if I Accept Placement of a Child in a Foster Care Situation?
Maybe. Foster care is defined in the FMLA regulations as 24-hour care for children in substitution for, and away from, their parent or guardian.
For FMLA benefit purposes, there must be some sort of state and/or court involvement in the placement. The mere act of taking in a relative’s or friend’s child will not qualify you for FMLA leave. A state agency or court must be involved in the removal of the child from parental custody.
If you are a regular foster parent or have accepted a fostering role in cooperation with a state agency or court, you will qualify to take some leave under FMLA.
What Happens If I Foster a Child for a Few Years and then Decide to Adopt Him? Will I Qualify for FMLA Benefits at the Time of the Adoption?
Well, there are two placement dates in this situation – a foster care placement and an adoption placement. Which applies? Or do both placement dates qualify for FMLA leave? As noted above, FMLA allows an eligible employee to take leave for the placement of a son or daughter with the employee for adoption or foster care. And the entitlement expires 12 months after placement.
The statute focuses on “the date of placement” and it appears that Congress intended that only the initial date of placement triggers the entitlement to FMLA leave. So, in the case of a foster child who is later adopted, the child would be “newly placed” at the time of the foster care placement and not at the time of the adoption. Only the initial placement would qualify for FMLA leave.
What Other Leave Options Do I Have, Other Than FMLA?
As we have discussed above, you and/or your employer may not qualify for FMLA. But don’t despair!
Make sure that you check out your state family leave laws – many states have leave laws which include adoption and which have less stringent qualification requirements (i.e. your company does not have to be as big) and better benefits (some states require paid leave, some states require a longer leave than 12 weeks).
And, last but definitely not least, check out your company’s policy on family leave and adoption. A talk with your HR representative could provide you with interesting and/or creative options for spending time with your new child and possibly even other adoption benefits.
Proceed to - Paternity Leave
