Are Foster Children Covered Under FMLA?


Foster parents provide a safe and temporary home for children in need of support and stability. Regardless of age, foster children need time to bond with their foster parents which often requires foster parents to take time off of work after placement. The Family Medical Leave Act (FMLA) is a federal employment law that entitles eligible employees to unpaid, job-protected leave for qualifying family or medical reasons. Under the FMLA, eligible employees may take up to 12 weeks of leave over a 12-month period for foster care placement of a child within one year of the placement.

A Brief Look at the Family Medical Leave Act

The Family Medical Leave Act was established in 1993 and is a U.S. labor law that requires covered employers to provide eligible employees with unpaid, job-protected leave to handle certain family and medical situations.

The U.S. Department of Labor’s Wage and Hour Division is responsible for overseeing the FMLA program. To qualify for the FMLA, an employee must be employed by a company that employs at least 50 people who work within a 75-mile radius of the work site. In addition, an employee must have been employed for at least 1,250 hours over the last 12 months.

An eligible employee who chooses to take leave under the FMLA has the right to job protection. This means that the employee can return to the same (or similar) position they held prior to their temporary departure. If the job is no longer available when the employee returns, the employer must offer another position that is substantially equal in responsibility, pay, and benefits.

There is often confusion about whether foster children are covered under FMLA. The terms of the FMLA define a child broadly but includes a biological child, foster child, adopted child, a legal ward, a stepchild, or a child of an individual who is standing in loco parentis to the child.

What Constitutes Foster Care Under the FMLA

Foster parents have the right to take FMLA leave but must meet certain requirements. To qualify for foster care under the FMLA, the following statements must be true:

  • You provide 24-hour care for a foster child as a substitute for care from a parent or guardian.
  • The foster care placement involves state action and there is an agreement between the foster family and state regarding this care.

There are also instances in which a person would not be considered a foster parent under the FMLA. For example, if an aunt agrees to care for her niece while the father is in prison. As this is essentially an agreement made between two siblings and the state is not involved, it would not be considered foster care under the FMLA.

Normal babysitting arrangements are also not considered foster care under the FMLA. For example, if a person agrees to watch someone else’s child between 9 AM and 5 PM each day while the mother works. As there is no 24-hour care involved, it is not considered a foster care arrangement under the FMLA.

Leave of Absence for Foster Care Under the FMLA

Eligible employees can take up to 12 work weeks of leave within a 12-month period for qualifying health or family reasons. This leave allows for bonding between the foster parent and the foster child within one year of placement with the employee.

The FMLA also allows eligible employees to start their leave before the actual placement of the foster child. For example, leave may be taken early to allow the employee to appear in court, consult with an attorney, attend counseling sessions, or undergo a physical examination.

While leave under the FMLA is generally taken continuously, an employee may be permitted to take intermittent periods of leave if it is agreed upon with the employer. However, the total number of weeks of leave cannot exceed 12 work weeks.

Violations of the Family Medical Leave Act in Arizona

Under Section 105 of the FMLA, employers are prohibited from interfering with, restraining, or denying the exercise of an employee’s FMLA rights. In addition, employers cannot discriminate or retaliate against an employee or prospective employee for complaining about or opposing unlawful practices under the FMLA.

The FMLA also prohibits all individuals from discharging or discriminating against another individual because that person has filed a charge related to the FMLA, given information in connection to an FMLA inquiry or proceeding, or testified (or is about to testify) about an inquiry or proceeding relating to FMLA rights.

There are many situations in which a foster parent who chooses to take leave under the FMLA can have their rights violated. For example, an employer who refuses to authorize FMLA leave for an eligible employee is violating FMLA.

Employers are also prohibited from discouraging an employee from taking FMLA leave or using a request for FMLA as a negative factor when making employment decisions, such as disciplinary action, demotion, or termination. Employers can also not count FMLA leave under a “no-fault” attendance policy.

Speak with an Experienced Arizona Employment Lawyer

The placement of a foster care child with an employee is a qualifying reason for leave under the FMLA. If you believe that your employer has violated your legal rights for leave based on terms outlined in the Family Medical Leave Act, it is important to speak

with an experienced Arizona employment lawyer as soon as possible. Contact the employment legal team at JacksonWhite Attorneys at Law by calling (480) 464-1111.

Contact Our Employment Law Team

Call (480) 464-1111 or fill out the form to schedule your consultation and discuss your best legal options.