Adoption: It can be a daunting journey, but it is worth all of the steps needed.
Adoption: it can be a daunting journey, but the conclusion – becoming adoptive parents – is worth all the steps needed. Aspiring parents in the workforce seeking to adopt a child have more resources available to them than they may know. As with any legal matter, it is vital to become educated in the process – and regarding your rights. In honor of November’s National Adoption Month, following is an overview of what you need to know when starting down the path to adoption.
As an attorney concentrating in both adoption and employment law, I often get asked, “Do I have to let my employer know I am adopting, and when do I have to tell them?” Adoptive parents also want to know how and when they are eligible for leave from work for an adoption.
Do I Need to Tell My Employer I’m Adopting?
Adoptive parents will most likely have to tell their employers sooner rather than later in the process that they are adopting. One of the many requirements of a home study or dossier is a letter from your employer stating that you are currently employed, in good standing, and have secure employment. Some adoptive parents also ask their employers for a positive letter of reference. Depending on the size of the company, your human resources office and/or immediate supervisor will most likely know about your adoption plans due to this requirement. You can request that the person(s) you have write the letter keep the matter confidential until you are ready to share your good news, but there is no legal requirement for them to do so. You also do not need to tell them more about your story (i.e., medical history) other than the fact that you are trying to adopt.
Once you are further along in the adoption process, you should consult your employee handbook or policy manual with regard to their coverage for leave and any benefits for adopting parents. If your employer does not have a handbook or policy manual, you need to ask your human resources officer or company contact for HR issues. A growing number of employers offer some type of adoption assistance that is usually discussed in an employee handbook: information resources, financial assistance to defray the costs of adoption, and parental leave policies. Your employer’s policies, along with state and federal law (if applicable), will govern your terms and length of leave for an adoption.
What Rights Do I Have In the Workplace?
Federal law requires covered employers to provide up to twelve (12) weeks of unpaid leave upon the birth or adoption of a child, and to continued health benefits during the leave period. In order to qualify for leave under the Family Medical Leave Act (“FMLA”), the following requirements must all be met:
1. Your employer must be a “covered employer,” meaning they have 50 or more employees, or, regardless of the number of employees, are a government agency (including local, state and federal employers) or an elementary and secondary school; and
2. In order for you to be an “eligible employee,” you must have worked for your employer for at least twelve (12) months, for at least 1,250 hours in the last twelve months before you take leave (an average of 24 hours per week over the course of a year), and you must work at a location where the employer has at least 50 employees within 75 miles of your worksite.
Men and women have the same rights to take FMLA leave for bonding with their child. The leave must be taken within one year of the child’s birth or placement for adoption and must be taken as a continuous block of leave unless the employer agrees to allow intermittent leave (for example, for a part-time schedule). You must give your employer at least 30 days advance notice or tell them as soon as you can. Your employer must notify you whether you are eligible for FMLA leave within five (5) business days after the submission of your leave request.
If you are qualified, your employer must provide you with your FMLA rights and responsibilities, as well as any requests for certification. During your leave, you must follow your employer’s usual notice or call-in procedures. It is important to keep your employer informed of your need for leave, and to provide periodic updates on your status and your intent to return to work.
At the end of your leave, you have the legal right under the FMLA to return to your job or one that is nearly identical (i.e., same or substantially similar duties, responsibilities and status). If you are considered a “key employee,” which is a salaried, FMLA-eligible employee who is among the highest paid ten (10) percent of all employees working for an employer within 75 miles of the employee’s worksite or a teacher, there are special rules regarding your employer’s obligations to you upon your return to work.
Your employer is prohibited from interfering with, restraining, or denying the exercise of FMLA rights, retaliating against you for filing a complaint and cooperating with the Wage and Hour Division of the U.S. Department of Labor, or bringing a private action to court. If you have questions or think your rights under FMLA have been violated, you should contact an attorney immediately for answers.
These are the bare minimum adoption leave requirements for an employer. Because most adoption leave is not covered under short-term disability policies, employers sometimes offer paid leave for adoptive parents, and allow employees to take more than the required twelve (12) weeks of unpaid leave. At least five states (California, Hawaii, New Jersey, New York and Rhode Island) have mandatory short term disability programs that may cover short term disability for the adoptive family.
In my experience, most employers recognize the need for a bonding period between a child and adoptive parents, and will accommodate the adoptive parents’ need for leave.