Q: We have an employee who recently had a child placed with her for foster care. (It is her niece.) She wants to take eight weeks of FMLA leave to bond with the foster child, but wants to know if she can take an additional eight weeks of FMLA leave when she adopts the child. She anticipates that the adoption likely will occur sometime next year.

A. My head is spinning, as there are a couple of potential issues here.  First, is this an actual foster “placement,” since it’s an aunt and niece relationship?  Second, when can an employee take FMLA leave for foster care?  And finally, can an employee obtain more than 12 weeks of FMLA leave if they are fostering first and then adopting a child?

So many issues. I answer them, in turn, below.

Is This Even Foster Care?

The reference to a “niece” in the question above has me wondering whether a foster care relationship even exists. Simply because an aunt or family member takes in another family member does not mean we have a foster care situation.  Under the FMLA, foster care is defined as:

  1. 24‑hour care for children in substitution for, and away from, their parents or guardian; and
  2. The placement into foster care involves state action, voluntary or involuntary removal of the child from the parents or guardian, and an agreement between the State and foster family that the foster family will take care of the child. 29 CFR 825.122(g)

So, foster care = 24-hour care plus involvement of the State.

That’s not to say that foster care must be a permanent arrangement. In fact, there is a good chance it won’t involve a long-term arrangement; yet, it still enjoys the protection of the FMLA.  The Department of Labor said as much in one of its earliest opinion letters:

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

When Can an Employee Take FMLA Leave for Foster Care?

Clearly, an eligible employee can take FMLA leave to bond with their foster child upon placement.

Keep in mind, though, that the employee also can take FMLA leave before the actual placement if an absence from work is required for the placement for foster care to proceed. As the regulations note, 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.” 29 CFR 825.121(a)(1)

Is the Employee Entitled to 12 Weeks for Foster Care Placement and Another 12 weeks Should They Adopt the Child?

In short, no. The FMLA regulations clearly state that an employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for the “placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child” (emphasis added). 29 CFR 825.200(a)

Another DOL opinion letter notes that this regulation is based on legislative history, which emphasizes that FMLA leave is available to care for a “child newly placed with the employee for adoption or foster care.” Senate Report No. 103-3, p.24.

Both the regulation and legislative history indicate that only the initial date of placement with a family triggers the right to leave. Therefore, the niece in this instance would be “newly placed” at the time of the foster care placement rather than when any subsequent adoption occurs.

No two bites at the apple on this one. The employee must complete 12 weeks of FMLA leave within the first 12 months of placement for foster care, and that’s all she’s entitled to.

 

 

 

 

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Photo of Jeff Nowak Jeff Nowak

Jeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing management.  Jeff represents employers in all areas of labor and employment law, but his passion is the FMLA — he eats, drinks and sleeps all…

Jeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing management.  Jeff represents employers in all areas of labor and employment law, but his passion is the FMLA — he eats, drinks and sleeps all things FMLA!