"As domestic and foreign adoptions of infants and children become more and more common, employers would be wise to increase their familiarity with the laws requiring leave for employees who adopt. Most employers covered by the federal Family and Medical Leave Act (that is, those with at least 50 employees) are aware that employees eligible for leave under the Act are generally allowed 12 weeks of unpaid leave for placement with the employee of a son or daughter for adoption. Fewer employers, however, may be aware that Kentucky law also requires that they grant reasonable leave (up to six weeks) to adopt a child under the age of seven, and that this requirement applies to all Kentucky employers.
To see how these adoption leave requirements work, let's look at the following hypothetical scenario involving employees Angie and Brad.
Angie has worked full time for five years for Globetrotters International, a 60-employee charitable organization in Lexington. She and her boyfriend, Brad, plan to adopt a baby from Africa. She asks Globetrotters for four weeks of leave to travel to Africa to pick up the baby and deal with adoption procedures. Globetrotters grants the leave. After the four weeks expires, Angie requests to go on a part-time schedule (four hours a day) for eight weeks, explaining that she needs time to bond with the baby. Globetrotters tells Angie she may not take the additional eight weeks leave.
Brad is employed by the Pitt Stop, a 20-employee diner in Lexington. Wanting to accompany Angie to Africa to pick up their baby and also wanting some extra time to bond with the baby after returning, he submits a written request for six weeks of leave. The Pitt Stop tells Brad the company is not covered by the FMLA and that the company has too much work right now for him to be gone for six weeks. It denies the leave request.
Have Globetrotters and the Pitt Stop acted properly?
We can tell from the facts that Angie is eligible for leave under the FMLA, since her employer has more than 50 employees, all in Lexington, and since Angie has worked for over 12 months full time. (A full-time schedule exceeds the minimum 1,250 hours during the past 12 months, as required for FMLA eligibility.) The reason Angie seeks the first four weeks of leave, i.e., to pick up the baby for adoption and to deal with adoption procedures, falls within one of the permitted reasons for leave: placement with the employee of a son or daughter for adoption. (Placement for foster care is also a permitted reason for leave). Angie is thus eligible for up to 12 weeks of unpaid leave in order to engage in the placement process. Her four weeks of continuous leave qualify for that purpose. What about the eight additional weeks of part-time leave (or, in FMLA terms, "reduced schedule" leave)? According to the FMLA regulations, after placement of a child for adoption, an employee may take leave on a reduced schedule only if the employer agrees. In this case, Globetrotters did not agree, so under the FMLA, Angie is out of luck. (If Angie had requested eight additional weeks of leave on a "full-time" schedule, would Globetrotters have to permit the leave? That depends on whether "placement" for adoption would include additional time to bond with the child, an issue that is unclear from the language of the regulation.)
Will Angie fare any better under Kentucky's adoption leave statute? Kentucky employers, upon receipt of a written request, must grant "reasonable personal leave not to exceed six weeks when the reception of an adoptive child under seven is the reason for the request." The statute says nothing about reduced schedule leave, and it is not clear if bonding with the child after placement for adoption would be permissible grounds for leave. In any event, Angie's maximum time off under the Kentucky statute would be six weeks (including the first four weeks for placement).
As for Brad, we know he cannot take advantage of the FMLA, because the Pitt Stop does not have at least 50 employees. But, will his request qualify under the Kentucky statute? The first four weeks almost certainly would qualify: the trip to Africa to pick up the baby and to deal with adoption procedures would seem to qualify as "the reception" of an adoptive child. As to the remaining two weeks, just as in Angie's case, the Kentucky statute may or may not apply to the additional time to bond with the baby. Since Brad's request is to take the additional two weeks as "full-time" leave, rather than reduced schedule leave, there is a better argument (than there was for Angie) that Brad's additional two weeks of leave would qualify under the statute.
Do you have a question about employee leaves of absence? E-mail Wendy Becker at wlb@gdm.com and your question may be addressed (anonymously, of course) in a future issue.
Wendy Becker, a member in the Lexington office of Greenebaum Doll & McDonald PLLC, advises and defends employers in all types of employment-related matters. She can be reached at wlb@gdm.com. This article is provided as general information rather than legal advice. Questions about individual situations should be directed to legal counsel.