Legal Question in Medical Leave in Florida
Foster/Adopt FMLA Question ... Hope someone can Help
We have an employee who had a Short-term foster placement in the end 05, however the placement became long term and now they are about to finalize on the adoption of the child in March 07. Thus far the employee has not taken any designated FML.
I am aware that FMLA covers adoption. But there are many views on this since the original foster placement was at the end 05 and the adoption placement was not until Jan. 07 with finalization not until March-
We are trying to determine if the employee is eligible to take FML after the adoption because it has been longer than the 12 month since the original foster placement or is each item a qualifing event .
Hope this is clear and someone can give me some understanding on the subject or point me in the right direction.
2 Answers from Attorneys
Re: Foster/Adopt FMLA Question ... Hope someone can Help
You are confusing the issues a bit. Let me give you some background, and then the answer.
The FMLA allows up to 12 weeks of unpaid leave in a 12 month period (the employer must choose which 12 month period to use - for example, calendar year) for serious health conditions of the employee or immediate family members, or maternity/paternity leave. The parental leave includes what is often referred to as "bonding time". That is, time after a child is born or comes into the family via adoption or fostering, for the parents and child to bond.
The key issue for you then is what Congress intended when it allowed FMLA leave for bonding. The legislative history shows that Congress understood the significance of the bonding experience when the child is first placed in the home. There is a DOL Opinion letter that recognizes this and states that the date of placement into the home triggers the right to FMLA leave. Therefore, when a family adopts a foster child, the child is only newly placed in the home at the time he/she becomes a foster child, not when later adopted.
The DOL letter is found at http://www.dol.gov/esa/whd/opinion/FMLA/2005/2005_08_26_1A_FMLA.htm. It includes the applicable regulations (which are found at 29 CFR Part 825).
So, the employee can not use FMLA protection just to spend time with the child after the adoption is finalized (unless you voluntarily allow it). But the employee of course can use FMLA protection if the child has a serious health condition, or if other FMLA protected types of leave arise.
Note that you of course may be more generous than the FMLA. If the employee wants to spend time home to celebrate the adoption and you can find a way to make that work (perhaps part-time work, work from home, etc.), that is perfectly acceptable and very humane. You can discuss this with the employee to try to find a solution.
Hope that helps. If you need a labor and employment lawyer for your company for FMLA or other issues, feel free to contact me directly.
Jeff Sheldon
Jeffrey L. Sheldon
The Sheldon Law Firm
CAVEAT: This is only general advice based on limited facts and knowledge of the situation. It thus can not be relied upon as legal advice nor is the author responsible or liable for any actions by the parties involved in the matter.
Re: Foster/Adopt FMLA Question ... Hope someone can Help
Contact the Department of Labor. Go to www.dol.gov to get the phone number of the office in your area.
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