(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.
(2) An employee's entitlement to leave for adoption or foster care
expires at the end of the 12-month period beginning on the date of the
placement. If state law allows, or the employer permits, leave for
adoption or foster care to be taken beyond this period, such leave will
not qualify as FMLA leave. See Sec. 825.701 regarding non-FMLA leave
which may be available under applicable State laws. Under this section,
the employee is entitled to FMLA leave even if the adopted or foster
child does not have a serious health condition.
(3) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken for the placement of the employee's son or daughter or to care
for the child after placement, for the birth of the employee's son or
daughter or to care for the child after birth, or to care for the
employee's parent with a serious health condition. This limitation on
the total weeks of leave applies to leave taken for the reasons
specified as long as a husband and wife are employed by the "same
employer." It would apply, for example, even though the spouses are
employed at two different worksites of an employer located more than 75
miles from each other, or by two different operating divisions of the
same company. On the other hand, if one spouse is ineligible for FMLA
leave, the other spouse would be entitled to a full 12 weeks of FMLA
leave. Where the husband and wife both use a portion of the total 12-
week FMLA leave entitlement for either the birth of a child, for
placement for adoption or foster care, or to care for a parent, the
husband and wife would each be entitled to the difference between the
amount he or she has taken individually and 12 weeks for FMLA leave for
other purposes. For example, if each spouse took 6 weeks of leave to
care for a healthy, newly placed child, each could use an additional 6
weeks due to his or her own serious health condition or to care for a
child with a serious health condition.
(4) An eligible employee is entitled to FMLA leave in order to care
for an adopted or foster child with a serious health condition if the
requirements of Sec. Sec. 825.113 through 825.115 and 825.122(c) are
met. Thus, a husband and wife may each take 12 weeks of FMLA leave if
needed to care for an adopted or foster child with a serious health
condition, even if both are employed by the same employer, provided
they have not exhausted their entitlements during the applicable 12-
month FMLA leave period.
(b) Use of intermittent and reduced schedule leave. An eligible
employee may use intermittent or reduced schedule leave after the
placement of a healthy child for adoption or foster care only if the
employer agrees. Thus, for example, the employer and employee may agree
to a part-time work schedule after the placement for bonding purposes.
If the employer agrees to permit intermittent or reduced schedule leave
for the placement for adoption or foster care, the employer may require
the employee to transfer temporarily, during the period the
intermittent or reduced leave schedule is required, to an available
alternative position for which the employee is qualified and which
better accommodates recurring periods of leave than does the employee's
regular position. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced leave. The employer's agreement is not required for
intermittent leave required by the serious health condition of the
adopted or foster child. See Sec. Sec. 825.202 through 825.205 for
general rules governing the use of intermittent and reduced schedule
leave. See Sec. 825.120 for general rules governing leave for
pregnancy and birth of a child. See Sec. 825.601 for special
rules applicable to instructional employees of schools.
[73 FR 68081, Nov. 17, 2008]
