There are a lot of questions that many adoptive families may have before deciding to adopt a child. One very common question is, “Will I get maternity leave and be able to stay home to care for my new child?” As adoption professionals, we wish the answer was YES but the answer is really… Probably, but it depends! Many employers recognize adoption maternity and paternity leave just as they would for a pregnant employee. In the event that they do not, the Family and Medical Leave Act extends its protections to adoptive and foster parents, offering 12 weeks of unpaid leave to care for newborn or fostered children. However, it is important to note that new employees of those of smaller companies might not be protected under the act and for many, the option of leave without pay isn’t ideal.
What is the Family and Medical Leave Act?
The Family and Medical Leave Act (FMLA) was created to help employees balance work and family life, by allowing employees to take a reasonable amount of unpaid leave for certain family and medical reasons. Falling under this category is adoption maternity/ paternity leave of adoptive families and foster parents. According to the United States Department of Labor, “The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. The FMLA also requires that the employee’s health benefits be maintained during the leave.
According to the United States Department of Labor, under the Family and Medical Leave Act, “Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA (Fair Labor Standards Act) principles for determining compensable hours or work. Time taken off work due to pregnancy complications can be counted against the 12 weeks of family and medical leave.” –US Department of Labor
How does FMLA apply to adoptive families?
Becoming an adoptive family takes a lot of planning. In regards to the FMLA, many families will need time off from work because they may need to plan to stay in the state where their child was born, which is on average 7 to 10 business days to comply with the Interstate Compact on the Placement of Children (ICPC).
There are many ways that the FMLA applies to adoptive families. Below is an excerpt taken from Adoptivefamilies.com that explains what you need to know as adoptive and foster parents under the FMLA and workplace rights that are important to familiarize yourself with.
Know Your Workplace Rights
BASIC REQUIREMENTS: Both you and your employer must fit certain criteria for FMLA to apply. On the employer side, FMLA applies to private sector businesses with at least 50 employees, to all state and local governments, and to all public and private school employees. With respect to individuals, the act applies to employees who have worked for a 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.
WHEN IT TAKES EFFECT: Eligible employees may take up to 12 weeks of unpaid leave during the 12 months following the birth or placement of a child. The leave can occur any time in that period. If both parents are eligible, the law will allow a newly adopted child to have at least 24 weeks with at least one parent at home full-time. An employer may, but is not required to, allow an employee to take her 12 weeks intermittently, for example, by working half-days for 24 weeks. If a husband and wife work for the same employer, the employer may limit them to a combined total of 12 weeks of leave, unless the child has a serious medical condition, in which case each parent is entitled to take 12 weeks.
WHAT ADOPTIVE PARENTS NEED TO KNOW: For any type of adoption, covered employees may begin their leave period before the child comes home, as long as the absence is necessary to the adoption or placement. This is particularly helpful for parents who need to travel to adopt. Early leave can also be used for meetings with attorneys or with prospective birth parents, counseling sessions, doctor visits, and so on.
Employers are entitled to ask for proof that a requested leave qualifies for FMLA. For adoption-related leave, a letter from your agency or attorney should be sufficient.
WHAT FOSTER PARENTS NEED TO KNOW: Foster parents are eligible for FMLA leave, as well, regardless of the age of the fostered child. However, there must be some involvement by the state or by a court for the placement to qualify — informal placements with relatives do not count.
If parents adopt a child whom they have fostered, they are probably not entitled to one leave period at the time of the foster placement and another at the time of formal adoption. FMLA would apply at the time of the initial placement.
JOB PROTECTIONS: FMLA ensures that employees cannot be penalized for taking leave. That means you must be allowed to return to work at the same level of pay and benefits that you had when the leave began. An employee is not entitled to continue accruing additional benefits during the leave period, but if an employer offers group health insurance, that employer must maintain the insurance during the employee’s FMLA leave.
ACCRUED TIME: FMLA allows employees to substitute accrued (sick/vacation/personal) paid time off for a corresponding portion of their leave. And while biological mothers are usually entitled to substitute paid medical disability leave, as well, while they physically recover from childbirth, adoptive mothers are not generally eligible to do so. Employers can also require employees to use accrued vacation or other personal time as part of their 12-week leave period. In other words, you can’t take your usual vacation in addition to 12 weeks of FMLA.
BONUS PROTECTIONS: FMLA sets a minimum standard. Depending on where you live, you may be entitled to even greater benefits. Many states have expanded the availability of family leave benefits by requiring smaller businesses to comply, providing that some or all of the leave be paid, or mandating a longer leave period. You can check your state’s laws on the National Conference of State Legislatures site.
(information source: adoptivefamilies.com)
What About Adoptive Fathers?
Many times in society it is a misconception that only mothers take maternity leave. The great thing about the FMLA act is that is recognizes BOTH parents! Adoptive and foster fathers can also take advantage of the FMLA and enjoy the same benefits that women do under the FMLA. Adoptivefamilies.com (link) states that “Men who exercise their rights under the FMLA will chip away at the lingering misperception that the father plays a less critical role in early parenting.” adoptivefamiles.com
Paid Leave Options:
While the FMLA is a great benefit, it does only offer unpaid leave. Many families are looking for paid options while taking adoption maternity leave. In these situations there are two options. According to babymed.com (link) the options are:
- Paid vacation time – Most employers will allow you to take some or all paid vacation during the 12 weeks allowed by FMLA.
- Sick pay – Laws and policies on using sick pay for maternity leave when adopting vary by state and employer. Contact the human resources or personnel department of your company to find out if sick pay is applicable during maternity leave.
It is true that many companies are in support of adoption leave. The first thing that you should do is check with your company’s human resource department to see what kinds of adoption leave is offered. In some cases companies will offer additional adoption benefits as well. Organizations such as the Dave Thomas Foundation make it possible for companies to become adoption friendly workplaces. Companies can purchase a tool kit that will help them become adoption friendly workplaces. This took kill shows organizations how to implement financial reimbursement and paid leave for employees who adopt. The Dave Thomas Foundation released this 2014 list of the top 100 Adoption Friendly Workplaces. The organizations recognized on this list provide an average of $7,000 in adoption assistance and four weeks of paid leave. Financial reimbursement varies from $500 to $25,300, and paid leave from one to 18 weeks. Unpaid leave for adoption, beyond what is required by the Family and Medical Leave Act, ranges from one week to three years.
If you find that your company does not offer short term disability benefits if the parent is not giving birth to the child, you find ways to combine vacation, sick and the 12 weeks given by the Family and Medical Leave Act. It is important to educate yourself as much as possible when considering adoption leave and choose an option that works best for you and your family. If your company does not provide additional adoption benefits the FMLA is designed to help families and allow both mothers and fathers the appropriate time to care for their newborn child.
Sometimes families are hesitant to adopt because of the finances needed to fund adoption, and their uncertainty of adoption leave. Adoptions From The Heart is a great resource to learn about not only how to fund your adoption but also tax credits that come from adopting as well.