FMLA leave allowed for overseas-adoption counseling trips

By Vicki Neal Jan 23, 2004
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Q: Can an employee take FMLA leave to go overseas for a counseling session prior to an adoption?

A: Yes. Employers who are covered by the Family and Medical Leave Act (FMLA) are required to grant leave to employees who are seeking adoption and who must be absent from work prior to an adoption. These absences would be required, for example, for a counseling session necessary for an adoption or foster care placement to proceed. So if an employee is in the adoption process but has not finalized the adoption and is required to attend a meeting or counseling session for the adoption to go through, the employer must grant FMLA leave to the employee so that he or she can attend the meeting or counseling session. In fact, the regulations have cited some examples for such needed time away from work, to include requirements to attend counseling sessions, appear in court, consult with attorneys or doctors representing the birth parent, or submit to a physical examination. Additionally, the regulations note that the source of the adopted child is not a factor in determining leave for this purpose. That means that it doesn’t matter if the adoption is taking place from a licensed placement agency or otherwise; so long as there is an adoption in process, the employer cannot deny the employee leave because of the source for adoption.

According to a recent study by the Bureau of Labor Statistics (BLS), reported in “Employee Benefits in Private Industry, 2003,” more employers are offering benefits that include adoption assistance, child care assistance and long-term care insurance. The sharpest increase found in adoption assistance was by employers with 100 or more employees, increasing by seven percentage points over statistics found in an earlier study done in 2000. As more employers are offering adoption assistance programs and possibly more employees are demanding adoption assistance as a benefit, there will be an increasing need for the use of FMLA benefits.

So, is that the only leave law employers need to comply with? Maybe. FMLA is the federal law that grants leave to the employees of covered employers. However, some states have enacted their own family, medical and parental leave laws. Some states have adoption leave provisions, and their laws can be quite extensive; other states have not adopted additional family leave laws beyond the federal law. If your state does have additional laws, you must comply with the federal or state provision that offers the most benefit to your employees.

To read more, the relevant section of the FMLA regulations can be viewed on the Department of Labor web site at www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.112.htm.

You can find out more about the study by calling the BLS at (202) 691-6199 or (202) 691-5902, or go online to http://stats.bls.gov/news.release/ebs2.nr0.htm.

To see if your state has additional leave laws to include family, medical and parental leave, see the SHRM web site for state resources at www.shrm.org/hrresources/stresources/ or the Department of Labor web site at

www.dol.gov/esa/programs/whd/state/fmla/.

Vicki Neal, PHR, is a specialist in the SHRM Information Center.

Please Note: This material is provided as general information and is not a substitute for legal or other professional advice. National members may reach the HR Knowledge Center by calling (800) 283-7476 and choosing option #5 or by using the HR Knowledge Center Request Form found under HR Answers on SHRM Online.
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