When it comes to adoption, your employer, and the benefits you’re entitled to, it’s important to understand your rights as an adoptive parent. This is the second post of an Adoption Benefits series designed to help you better understand your rights, and learn about the resources available to you.
I recently had the opportunity to sit down with adoption attorney Janna Annest and learn more about the Family and Medical Leave Act and how it relates to adoption. Please read on for her explanation.
Adoptive parents are entitled to the protections of the Federal Family and Medical Leave Act (FMLA) to the same extent as biological parents. The FMLA’s definition of “son or daughter” expressly includes adopted and foster children, and the Act identifies placement of a child for foster or adoptive care as a qualifying reason for leave. But even though the law is clear, some employers have no experience with adoption-related parental leave. Therefore, adoptive parents should educate themselves about the FMLA.
The first question is whether the FMLA applies in the first place. The FMLA applies to (a) private-sector businesses with at least 50 employees; (b) all state and local governments; and (c) all public and private school employees. Employees must have worked for an eligible covered employer for a total of 12 months (not necessarily consecutive), and for at least 1,250 hours in the 12 months preceding the leave in order to claim benefits under the Act.
If you and your employer qualify, the Act requires employers to provide up to 12 weeks of unpaid leave to care for and bond with a newly placed adoptive or foster child. The Act ensures that employees cannot be penalized for taking leave, so you must be allowed to return to work at the same level of pay and benefits. You can take the 12 weeks anytime within the first year after birth or placement, and adoptive and foster parents can actually begin the leave period before the child’s birth or placement, if the absence is necessary for the adoption or placement. Activities like counseling sessions, international travel, legal appointments, and meetings with birth parents can all qualify.
Employers may agree to allow the 12 weeks to be spread over a longer period of time (for example, working half-days for 24 weeks), but they are not required to. Likewise, employers can require you to use accrued vacation or other personal time as part of the 12-week leave. Your employer is entitled to ask for proof that the requested leave qualifies under the FMLA, but a letter from your agency or attorney should suffice.
If you or your employer fall outside the scope of the FMLA, that doesn’t mean you are out of luck. Check your state family leave laws on the National Conference of State Legislatures site, because they may provide even broader benefits than the federal Act (for example, by requiring smaller businesses to comply, requiring that a portion of the leave be paid, etc.). If you do not fit the criteria for state or federal laws, ask your employer directly! Even if it is not required by law, your employer may still choose to follow the Act or provide other reasonable parental leave benefits. You employer may also be able to help you determine the most beneficial way to use vacation or personal leave time that you already have available.
Foster parents are eligible for FMLA leave regardless of the age of the fostered child. However, a state agency and/or court must be involved in the placement – informal arrangements do not count. When parents adopt a child they have fostered, they would be entitled to FMLA leave at the time of the initial placement, but not to a second leave period at the time of adoption.
Remember, the FMLA applies equally to all parents! Adoptive and foster fathers can – and should, if possible! – take full advantage of available leave. In practice, fewer men take parental leave than women, but the tide is turning. Fathers who do take parental leave help correct the misperception that fathers play a less critical role in the early stages of parenting.
About Janna: Janna Annest is a shareholder at Mills Meyers Swartling P.S., where her practice focuses on adoption law, estate planning, and business disputes. She is a Fellow of the American Academy of Adoption Attorneys and has been named to the Washington Rising Stars list of outstanding lawyers from 2009-2017. Janna joined WACAP’s Board of Directors in 2014, and currently serves as Chairperson. She is an adoptive mother of two. Outside the office, Janna spends most of her time exploring West Seattle with her husband, daughter and son.