Human Resource Blog

Male Employee Taking FMLA Time Off for a New Foster Child

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There is a male employee that is taking in a foster child. He wishes to take time off under the Family and Medical Leave Act. I think it is legal for him to do so, but can you confirm?

Yes, it is legal for both male and female employees to take time off under the Family and Medical Leave Act (FMLA) when they adopt, give birth to, or take in a foster child. The FMLA is a federal document that applies to employees, employers and companies in states across the U.S. The Act was put into place in 1993 in order to ensure that when employees have unusual circumstances that relate to family and medical issues, they are able to take time away from work and still have a job when they return.

According to the Act, your employees may take up to 12 weeks off of work per year as long as they have worked for at least 12 months (even if those months were not consecutive) of the past year. Those employees must also have put in at least 1,250 hours with your company during those previous 12 months.

Also, your business needs to be eligible as well. As such, you will have to have at least 50 employees that work for you during each working day for 20 or more calendar workweeks of the preceding calendar year.

According to the FMLA, if your employee wishes to take his 12 weeks in order to spend time with his new foster child, you may or may not have to pay him (depending on your company policy.) However, you will have to ensure that he will have a job when he returns as long as he would have had the job if he had not taken the time off. For example, if you are laying employees off and this particular employee was scheduled to be laid off, then you may still lay him off. You will want to be able to prove that he was on the lay-off schedule before leaving though.

Also, when your employee returns to work, he should expect to get the same job or an equal job, with the same pay and benefits that he had before taking his time off. CB