A new department of Labor opinion letter sheds light on when an employee does—and doesn’t—have the right to FMLA leave when adopting a child or receiving a child for foster care. We’ll explain the rules and point out some key differences in this area between the FMLA and the California Family Rights Act (CFRA).
FMLA Basics
The Family and Medical Leave Act (FMLA) requires covered employers to give eligible employees up to 12 workweeks in a 12-month period of unpaid, job-protected leave to care for the employee’s newborn or a child placed with the employee for adoption or foster care, to care for a family member with a serious health condition, and for the employee’s own serious health condition.
Special Adoption and Foster Care Rules
Family leave is available for the placement of a child under age 18 for adoption or foster care and to care for that child. For FMLA leave tied to adoption, whether the child was adopted from a licensed placement agency or otherwise isn’t a factor in determining whether the employee is eligible for the time off. For foster children, however, the state must be involved in the placement—informal arrangements, even on an emergency basis, for the employee to care for another person’s child don’t qualify an employee for FMLA leave. You can ask for “reasonable documentation” to confirm an adoption or foster placement, such as court or state agency paperwork connected to a placement. Note that you must return the documentation to the employee.
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The leave must be taken within 12 months of the adoption or placement, rather than 12 months from the date the leave is requested, unless you permit a longer time. The leave may begin before the actual placement if the employee needs time off to make the adoption or foster arrangements. For example, an employee may need to attend counseling sessions, appear in court, or consult with an attorney.
Under the FMLA, an employee who needs leave for adoption or foster placement can take the leave intermittently or on a reduced schedule as long as you approve it—but your consent isn’t needed when intermittent or reduced leave is necessary for adoption procedures that take place on short notice. However, the CFRA permits intermittent and reduced leave, even if you don’t agree.
New Opinion Letter
The Department of Labor’s (DOL) Wage and Hour Division, which enforces the FMLA, recently addressed two issues in an opinion letter: 1) whether FMLA leave is required for an employee who has a foster child in the home and then, after a couple of years, adopts that same child; and 2) whether taking an adopted child on vacation to introduce the child to extended family can be FMLA-qualifying.
The DOL said that FMLA permits leave only for a “newly placed” foster or adoptive child—meaning within 12 months of the placement. Thus, leave for adopting a child who was already in the employee’s home for foster care wouldn’t be FMLA-qualifying. Only the initial date of placement with a family triggers the right to leave.
The agency also said that an employer doesn’t have to grant FMLA leave for an employee to take an adopted child on vacation to visit extended family. However, during an otherwise approved FMLA leave for a new foster or adoptive placement, an employee can certainly use some of the time to introduce the child to the employee’s extended family.
More Information
For additional guidance on family and medical leave issues, see the CEA Special Report, “Compliance Guide to the Federal Family and Medical Leave Act and the California Family Rights Act,” available at no cost to our online subscribers. U.S. Department of Labor Opinion Letter