(a) Employers covered by FMLA are required to grant leave to
eligible employees:
(1) For birth of a son or daughter, and to care for the newborn
child;
(2) For placement with the employee of a son or daughter for
adoption or foster care;
(3) To care for the employee's spouse, son, daughter, or parent with
a serious health condition; and
(4) Because of a serious health condition that makes the employee
unable to perform the functions of the employee's job.
(b) The right to take leave under FMLA applies equally to male and
female employees. A father, as well as a mother, can take family leave
for the birth, placement for adoption or foster care of a child.
(c) Circumstances may require that FMLA leave begin before the
actual date of birth of a child. An expectant mother may take FMLA leave
pursuant to paragraph (a)(4) of this section before the birth of the
child for prenatal care or if her condition makes her unable to work.
(d) Employers covered by FMLA are required to grant FMLA leave
pursuant to paragraph (a)(2) of this section 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 counselling sessions, appear in
court, consult with his or her attorney or the doctor(s) representing
the birth parent, or submit to a physical examination. 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.
(e) Foster care is 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
between 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.
(f) In situations where the employer/employee relationship has been
interrupted, such as an employee who has been on layoff, the employee
must be recalled or otherwise be re-employed before being eligible for
FMLA leave. Under such circumstances, an eligible employee is
immediately entitled to further FMLA leave for a qualifying reason.
(g) FMLA leave is available for treatment for substance abuse
provided the conditions of Sec. 825.114 are met. However, treatment for
substance abuse does not prevent an employer from taking employment
action against an employee. The employer may not take action against the
employee because the employee has exercised his or her right to take
FMLA leave for treatment. However, if the employer has an established
policy, applied in a non-discriminatory manner that has been
communicated to all employees, that provides under certain circumstances
an employee may be terminated for substance abuse, pursuant to that
policy the employee may be terminated whether or not the employee is
presently taking FMLA leave. An employee may also take FMLA leave to
care for an immediate family member who is receiving treatment for
substance abuse. The employer may not take action against an employee
who is providing care for an immediate family member receiving treatment
for substance abuse.
