When Foster Care Leads to Adoption, Just One Family Leave Applies

I have an employee who is going through counseling to become a foster parent. Is she eligible for the federal Family Medical Leave Act (FMLA) only after she gets custody of the child? Also, she is considering adoption if all goes well during the foster care. Does she get 12 weeks FMLA leave for the foster parent and an additional 12 weeks next year for FMLA if she adopts the child?

Both the FMLA and the state California Family Rights Act (CFRA) allow an eligible employee to take leave for foster care.

Provided your company is covered by the FMLA, to be eligible for the leave, an employee would need to have been employed by you for one year and have worked 1,250 hours during the 12 months prior to the request for a leave.

FMLA/CFRA would apply, not just to the time after the child is placed in the home of your employee, but also for preliminary foster care program requirements.

Becoming a foster parent in California involves a lengthy review process that may take up to six months or more before a child is placed. Program requirements include applying for a foster care home license, passing a thorough criminal background check and medical examination, having a home inspection and meeting minimum space and safety requirements, meeting with placement counselors and other professionals involved in the process, attending orientation and completing a 12-hour pre-certification training, etc.

Federal Regulation

FMLA clearly addresses this issue in the following federal regulation:

29 CFR § 825.121 Leave for adoption or foster care.

(a) General rules. Eligible employees are entitled to FMLA leave for placement with the employee of a son or daughter for adoption or foster care as follows:

(1) Employees may take FMLA leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed. 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 source of an adopted child (e.g., whether from a licensed placement agency or otherwise) is not a factor in determining eligibility for leave for this purpose.

Any time that an employee is involved in foster care program requirements, FMLA would apply. If the employee needs time off during a work day, you may ask for advance notice or a schedule of the program requirements.

Trigger for Leave

Can an employee take 12 weeks FMLA for foster care and then take an additional 12 weeks after she adopts the child?

No, once the initial 12 weeks of FMLA leave has been used, the employee is not entitled to a second FMLA leave.

FMLA regulations are clear that an employee is permitted to use one 12-week period for foster care or adoption when a child is initially placed with an employee.

The U.S. Department of Labor (DOL) also has specifically addressed this issue in Opinion Letter FMLA2005-1A dated August 26, 2005.

When a child is “newly placed” is the determining factor as to when FMLA is triggered and this Opinion Letter clearly indicates that the employee does not get two bites at the apple by having two leaves.

In this situation, there is one right to FMLA that begins with the foster care. After those 12 weeks have run, the employee does not have a right to take a second FMLA leave if she later adopts that child.

The full DOL opinion letter may be accessed at the link below: www.dol.gov/whd/opinion/FMLA/2005/2005_08_26_1A_FMLA.pdf.

Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff Contact: Sunny Lee

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Sunny Lee joined the CalChamber in 1995 and assisted callers on the Labor Law Helpline through January 2022. Before joining the CalChamber staff, Lee represented employers in state and federal court and before governmental agencies. She has extensive dispute resolution experience, having served as a court mediator in harassment cases, employment disputes and business litigation. She has trained employers and conducted audits of employment practices. Lee earned a J.D. from the McGeorge School of Law, University of the Pacific.