Adoption leave essentially means the same thing as maternity or paternity leave, which is the right to leave your employment without pay for a certain amount of time to care for a newborn child. The only difference between the terms is that the latter refers to biological children, (e.g., giving birth to a child), and adoption leave concerns preparing and caring for an adopted infant or child.
The Family Medical Leave Act of 1993 (FMLA) is a federal law that provides eligible employees up to twelve weeks of unpaid leave within a twelve month period to care for a newborn. This law also includes coverage for parents of adopted children and foster care. It is also not limited to just infants, but instead applies to children of all ages so long as they have been adopted or a part of foster care.
If an employee is eligible for FMLA leave and does so for a qualifying reason (e.g., adoption leave), then an employer is not permitted to fire that employee. An employer is also not allowed to discriminate against or reprimand the employee.
To determine whether an employee is eligible to take leave under the FMLA, the following factors must apply:
- The employee must work for a covered employer;
- The employee must have worked for the employer for twelve months;
- The employee must work at a location where the employer has 50 or more employees within 75 miles; and
- The employee must have worked 1,250 hours during the 12 months prior to the start of leave (Note: The 1,250 hours only applies to those hours actually worked for the employer. Paid or unpaid leave, including FMLA leave, do not count as part of the total).
Although the FMLA provides the minimum standard time off, depending on where you live, different states also have their own laws regarding family leave and may even provide extended time off for parents of newly adopted children.
To find out more about the laws that apply to family leave in your jurisdiction, you should consult a local employment lawyer who can further advise you of your state’s specific policies.
According to the law, adoption leave begins when the child is placed with the parents. The adoption process does not need to be finalized in order to take leave.
Adoption leave may sometimes start even before the child is living in the home. This is because of another federal law called, the Interstate Compact on the Placement of Children (ICPC). This law applies when parents are adopting a child from out of state.
The ICPC requires the parents to file proper paperwork with different state agencies, and occasionally, to stay in the state where the child was born for around 7-10 business days.
Also, some adoptions can span months or years after the child has been placed with the new parents. Thus, the FMLA allows for early leave for adopted parents to meet with attorneys, to travel to the location of the child, to attend doctor visits, and so forth.
Finally, it is important to know that all leave that is taken for the placement of the child must be concluded within twelve months, whether or not the adoption has been finalized. This is not particular to adoption, but instead applies to all leave that can be taken under the FMLA.
According to the United States Department of Labor, an employee will typically need to provide notice 30 days in advance of when they anticipate to start their FMLA leave.
In certain situations, providing 30 days advance notice may not be possible. Thus, in such a case, the employee should let the employer know as soon as possible, otherwise the employee may be in violation of the FMLA.
Additionally, employers are allowed to ask an employee to provide evidence that the requested leave actually qualifies for FMLA standards. For an adoption, this proof may come in the form of a letter from an adoption agency, or an attorney that can verify the adoption.
This is another reason why it is a good idea to get in contact with an attorney as soon as possible when starting the adoption process, or requesting FMLA leave.
As a parent of an adopted child, you have certain parental rights that your employer is legally not allowed to deny. An experienced lawyer will be able to further advise you of your parental rights, help you to protect them, and assist you in recovering any damages that you may be owed.