I afresh accustomed the afterward Ancestors and Medical Leave Act (FMLA) query:
“We accept an agent who afresh had a adolescent placed with her for advance care. (It is her niece.) She wants to booty eight weeks of FMLA leave to band with the advance child, but wants to apperceive if she can booty an added eight weeks of FMLA leave back she adopts the child. She anticipates that the acceptance acceptable will activity ancient aing year.”
My arch is spinning, as there are a brace of abeyant issues here. First, is this an absolute advance “placement,” back it’s an aunt and niece relationship? Second, back can an agent booty FMLA leave for advance care? And finally, can advisers access added than 12 weeks of FMLA leave if they are adopting aboriginal and again adopting a child?
So abounding issues. I acknowledgment them, in turn, below.
Is This Alike Advance Care?
The advertence to a “niece” in the catechism aloft has me apprehensive whether a advance affliction accord alike exists. Simply because an aunt or ancestors affiliate takes in addition ancestors affiliate does not beggarly we accept a advance affliction situation. Under the FMLA, advance affliction is authentic as:
So, advance affliction = 24-hour affliction additional captivation of the state.
That’s not to say that advance affliction charge be a abiding arrangement. In fact, there is a acceptable adventitious it won’t absorb a abiding arrangement; yet, it still enjoys the aegis of the FMLA. The Department of Activity said as abundant in one of its ancient assessment letters:
Neither the statute nor implementing regulations imposes a minimum aeon of time or permanency in affiliation with a advance affliction adjustment for FMLA leave purposes. So continued as the adjustment is the aftereffect of a advance affliction acceding amid the advance parents and the state, leave to affliction for the anew placed advance adolescent would be advised FMLA leave.
[SHRM members-only HR forms: FMLA Notice of Eligibility and Rights & Responsibilities]
When Can an Agent Booty FMLA Leave for Advance Care?
Clearly, acceptable advisers can booty FMLA leave to band with their advance adolescent aloft placement.
Keep in mind, though, that the agent additionally can booty FMLA leave afore the absolute adjustment if an absence from assignment is appropriate for the adjustment for advance affliction to proceed. As the regulations note, the agent “may be appropriate to arise counseling sessions, arise in court, argue with his or her advocate or the doctor(s) apery the bearing parent, abide to a concrete examination, or biking to addition country to complete an adoption.”
Are Advisers Advantaged to 12 Weeks for Advance Affliction Adjustment and Addition 12 Weeks Should They Adopt the Child?
In short, no. The FMLA regulations acutely accompaniment that an employee’s FMLA leave alms is bound to a absolute of 12 workweeks of leave during any 12-month aeon for the “placement with the agent of a son or babe for acceptance or advance care, and to affliction for the anew placed child” (emphasis added).
Another DOL assessment letter addendum that this adjustment is based on aldermanic history, which emphasizes that FMLA leave is accessible to affliction for a “child anew placed with the agent for acceptance or advance care.”
Both the adjustment and aldermanic history announce that alone the antecedent date of adjustment with a ancestors triggers the appropriate to leave. Therefore, the niece in this instance would be “newly placed” at the time of the advance affliction adjustment rather than back any consecutive acceptance occurs.
No two bites at the angel on this one. The agent charge complete 12 weeks of FMLA leave aural the aboriginal 12 months of adjustment for advance care, and that’s all she’s advantaged to.
Jeff Nowak is a Chicago-based accomplice and co-chair of the activity and application convenance at Franczek Radelet P.C. and columnist of the FMLA Insights blog, area this commodity originally appeared. © 2018 Franczek Radelet P.C. All rights reserved. Republished with permission.
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