If you have adopted or are going to adopt a child and are looking into maternity leave, the FMLA act is what grants you the right to legally do so. The Family and Medical Leave Act (FMLA) is a United States labor law established in 1993. It requires employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. These include pregnancy, adoption, foster care, placement of a child, personal or family illness, or family military leave. This act provides women the ability to take maternity leave for adoption, and is administered by the Wage and Hour Division of the United States Department of Labor.
The Family and Medical Leave Act
This law was created to balance the demands of the workplace as well as the needs of families. It was originally introduced to Congress in 1984 but didn’t receive approval until 1993. The Act was mostly created to protect women in the workforce when they become pregnant and have to take time off to care for their children. However, it wasn’t intended to focus only on that specific issue as it also includes protection for unpaid leave for serious medical conditions and the right to take time off to care for immediate family members.
Eligible employees can take up to 12 workweeks of unpaid leave during any 12-month period to attend to the serious health conditions outlined previously. These conditions can affect the individual, parent, spouse, or child of the employee. Upon their return to work, it is expected that they will return to the same position with the same pay and benefits, but if that is not possible they will receive a new position of equal value in terms of pay and benefits.
Maternity Leave for Adoption
Many adoptive families can worry about being allowed to take maternity or paternity leave. Not only do you have to stay within the state the child is born for an average of 7 to 10 days after the adoption to comply with the Interstate Compact on the Placement of Children, but you will also want to spend time with the child and bond as a family. The FMLA ensures that maternity leave for adoption is treated just the same as traditional maternity where the employee is pregnant. Under this act, adoptive families are allowed to take up to 12 weeks of unpaid leave from work without jeopardizing their employment. The time of leave begins when you first bring your child into your home. If you have to take time off of work during the adoption process, this time will then be subtracted from your allowed 12 weeks of leave. Despite the guarantees offered under the FMLA, some companies can be less supportive of adoption leave so be sure to speak with your companies human resources department for specific information and contact an Employment Law Defense Attorney if necessary.
The FMLA allows a covered employee to take unpaid leave to care for and bond with a new “son or daughter”, which is defined as a biological child, legally adopted child, foster child, stepchild, legal ward, or a child of a person standing “in loco parentis.” “In loco parentis” refers to a person acting in place of a parent who has day-to-day responsibilities to care for or financially support the child. This can be very important for same-sex couples who are unable to jointly adopt a child so that the legal parent and “in loco parentis” parent are both eligible for adoption leave under the FMLA.
Both parents can take paternity or maternity leave for adoption at the same time. This applies to parents who are married or in a de facto relationship. Both partners make take up to 8 weeks of unpaid parental leave at the same time. This is known as ‘concurrent leave’ and is part of an employee’s total unpaid parental leave entitlement. This means any concurrent leave you take is deducted from your total parental leave entitlement. It is also possible for concurrent leave to be taken in separate periods, usually lasting at least 2 weeks long.
Rights While On Adoption Leave
Under the FMLA, you have the right to be reinstated to your former position. If that position is no longer available, then you have a right to a comparable job in terms of salary and benefits. These are the only rights the FMLA protects. So if your entire department is let go, you no longer have the right to a comparable job because you would have been laid off even if you weren’t on adoption leave.
FMLA Interference
Employers are not allowed to hinder or segregate against employees who fall under the FMLA. It is not legal for your employer to deny the request or to deny you any of the rights for maternity leave for adoption that would be awarded to traditional maternity leave. If you believe your employer has denied your request for maternity leave because you are adopting a child, be sure to speak to an employment law attorney for more information about your potential case.
