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FMLA Leave Applies to Adoption or Foster Placement

January 15, 2019
Most new parents who seek time off under the federal Family and Medical Leave Act (FMLA) do so for the birth of a biological child. But employees may also seek leave for the adoption of a child, or a child placed in the home via foster placement.
The FMLA has a specific regulation that addresses the issues around adoption and foster placements. It is 29 CFR 825.121 and is available here
These terms are defined in the FMLA regulation as follows: 
  • Adoption means legally and permanently assuming the responsibility of raising a child as one's own. The source of an adopted child (whether from a licensed placement agency or otherwise) is not a factor in determining eligibility for FMLA leave.
  • Foster care means 24-hour care for children in substitution for, and away from, their parents or guardian. Such placement is made by or with the agreement of the state as a result of a voluntary agreement with the parent or guardian that the child be removed from the home, or pursuant to a judicial determination of the necessity for foster care, and involves agreement between the state and foster family that the foster family will take care of the child. Although foster care may be with relatives of the child, state action is involved in the removal of the child from parental custody.  
The definitions matter because eligibility for FMLA is based on legal compliance with the adoption or foster-care terms as defined in the law. For example, if an employee claims she has a foster-child placement of a relative, say a grandchild, and seeks FMLA leave, an employer needs to know whether the foster placement complies with the law as is defined above, or is just an informal family arrangement that the employee calls foster care.
One way to think about it is:
  • Foster care requires 24-hour care plus state government involvement such as the child being removed from the prior home situation and a court ruling that the child be placed in foster care.
Foster care does not need to be a permanent placement. The US Department of Labor made clear in a 1996 opinion letter: “Neither the statute nor implementing regulations imposes a minimum period of time or permanency in connection with a foster-care placement for FMLA leave purposes. So long as the placement is the result of a foster-care agreement between the foster parents and the state, leave to care for the newly placed foster child would be considered FMLA leave.”
The full opinion letter is available here.
The employee may take FMLA leave before the actual placement if that is required for the adoption or placement. For example, the employee “may be required to attend counseling sessions, appear in court, consult with his or her attorney or the doctor(s) representing the birth parent, submit to a physical examination, or travel to another country to complete an adoption.”  
The eligible employee’s right to leave is no greater than any other employee’s FMLA leave and ends at 12 months from the start of the process, unless state law allows more.  An example of state law allowing more may be the Massachusetts Parental Leave Act providing for up to eight weeks per child and the couple adopts twins. 
Intermittent/Reduced Leave Option
The FMLA rules are consistent in that an eligible employee may only use intermittent or reduced schedule if the employer agrees. Finally, remember that the general FMLA leave extends to an adopted or foster child with a serious health condition assuming it meets the FMLA definition of serious health condition as defined in 29 CFR 825.113 – 115.
If the employer agrees to permit intermittent or reduced schedule leave for the placement for adoption or foster care, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position. 
Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, federal law (such as the Americans with Disabilities Act), and State law. Transfer to an alternative position may include altering an existing job to better accommodate the employee's need for intermittent or reduced leave. The information on intermittent and reduced leave schedules is available here
AIM members who have questions about HR-related issues may call the AIM Hotline at 1-800-470-6277.
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