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 What Is Maternity Or Paternity Leave?

Maternity leave generally refers to the time in which an employee takes off of work in order to care for their new baby. This is also commonly referred to as pregnancy or parental leave. A person may start their maternity leave a few weeks prior to the baby’s arrival, if the employer agrees to let them do so. At the federal level, maternity leave can be granted through the Family and Medical Leave Act (“FMLA”). Maternity leave can also be provided through individual state law, and/or by your individual employer.

When you or your spouse gets pregnant, it is important to know what parental leave laws and company policies will apply to your specific circumstances. If you adopt or foster a child, parental leave policies and laws will also apply in most circumstances, which will be further discussed later on. This is important because if you are treated differently or retaliated against for having a baby, you may have grounds for a discrimination lawsuit against your employer.

Family leave is intended to allow the new family to rest, recover, and spend time together before returning to work. This includes paternity leave, in which the partner of the pregnant person is entitled to take time off from work. Again, the purpose of this time off is to bond with their new child, as well as to fulfill their caretaker duties.

It is important to note that while family leave seems like an obvious concept, specifically paternity leave, not every employer offers paternity leave to their employees. Among those that do, they do not generally provide pay to the employee while they are on family leave. What this means is that a parent who takes paternity leave will be doing so at a loss, and as such, most parents will not take leave because they cannot afford to.

As was previously mentioned, the FMLA is a federal labor law that requires covered employers to provide their employees with unpaid leave for qualified medical and family circumstances. While not every employer offers paternity leave as a form of family leave, paternity leave is covered by the FMLA for those who qualify.

Eligible employees are generally entitled to:

  • Twelve weeks of unpaid leave;
  • Medical and/or health benefits during their leave of absence; and
  • The restoration of their original position once their leave has ended and they return to work.

What Is Adoption Leave?

Adoption leave is essentially the same as maternity or paternity leave, which is the right to leave your employment without pay for a certain amount of time in order to care for your newborn child. The only difference between the terms would be that maternity/paternity leave is for birthing a child, and adoption leave is intended for preparing and caring for an adopted infant or child.

Again, it is the FMLA that provides eligible employees up to twelve weeks of unpaid leave within a twelve month period in which to care for a newborn. This law also includes coverage for parents of adopted children, as well as those who are working with foster care. Additionally, adoption leave is not limited to infants, but applies to children of all ages as long as they have been adopted or are a part of foster care.

If an employee is eligible for FMLA leave and takes their leave for a qualifying reason, such as adoption leave, an employer is not permitted to fire that employee. And, the employer cannot discriminate against or reprimand the employee.

In order 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, as not all employers are automatically covered by the FMLA;
  • The employee must have worked for the same employer for twelve months;
  • The employee must work at a location in which 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. It is important to note that the 1,250 hours only applies to hours actually worked for the employer. Paid or unpaid leave, including FMLA leave, do not count as part of the total.

While the FMLA provides the minimum standard time off, different states also have their own laws associated with family leave. There are some states which provide extended time off for parents of newly adopted children.

When Does Adoption Leave Start? When Should I Notify My Employer?

According to the FMLA, adoption leave begins when the child is placed with their adoptive parents. What this means is that the adoption process does not need to be finalized in order to take leave.

Adoption leave can also start before the child is living in the home, under specific circumstances. This is due to another federal law known as the Interstate Compact on the Placement of Children (“ICPC”), which applies when parents are adopting a child from out of state. The ICPC requires the adoptive parents to file paperwork with different state agencies. Occasionally, they may be asked to stay in the state in which the child was born for up to ten business days.

Because some adoptions can span months or years after the child has been placed with the new parents, the FMLA allows for early leave for adopted parents to:

It is important to note 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 specific to adoption, as it applies to all family leave that can be taken under the FMLA.

In terms of when to notify your employer that you intend to take adoption leave, according to the United States Department of Labor, you will generally need to provide notice 30 days in advance of when you anticipate to start your FMLA leave. Because providing 30 days advance notice may not be possible, you should let your employer know as soon as possible. Otherwise, both you and your employer 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. In terms of an adoption, this proof may be a letter from an adoption agency, or a statement from an attorney that can verify the adoption. This is why it is generally recommended that you contact an attorney as soon as possible when starting the adoption process, or requesting FMLA leave.

Do I Need A Lawyer For Issues With Adoptive Leave?

If you are having issues with taking FMLA leave, or if you have been denied leave that you are otherwise eligible to take, you should contact an employment law attorney immediately.

As the parent of an adopted child, you have specific parental rights that your employer is legally not allowed to deny. An experienced lawyer can help you understand these legal rights as well as your options according to your state’s specific laws, and will also be able to represent you in court, as needed.

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