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FMLA Bonding Leave for Custodians

Discussion in 'Medical Leave & Disability' started by CustodialBonding, Jun 1, 2020.

  1. CustodialBonding

    CustodialBonding Law Topic Starter New Member

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    Jurisdiction:
    North Carolina
    We are in the process of getting custody of my niece and nephew. We would have a custody order - not kinship foster care. The children are ages 4 and almost 2 and have never lived with us. Are we eligible for FMLA bonding leave?

    We meet other requirements having been employed over a year and work full time.
     
  2. Zigner

    Zigner Well-Known Member

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    FMLA Frequently Asked Questions | U.S. Department of Labor

    It doesn't appear so.
     
  3. CustodialBonding

    CustodialBonding Law Topic Starter New Member

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    Can you provide more evidence? An FMLA Fact Sheet 28B states: 1)The Family and Medical Leave Act (FMLA) entitles an eligible employee to take up to 12 workweeks of job-protected unpaid leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, andT 2)F defines a “son or daughter” as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis
     
  4. cbg

    cbg Super Moderator

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  5. army judge

    army judge Super Moderator

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    That is a question BEST asked of your respective employers, or your HR/Benefits Departments.
     
    hrforme likes this.
  6. CustodialBonding

    CustodialBonding Law Topic Starter New Member

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    They denied it. That doesn't mean they are correct
     
  7. army judge

    army judge Super Moderator

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    If that is your belief, good luck.
     
  8. Tax Counsel

    Tax Counsel Well-Known Member

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  9. Tax Counsel

    Tax Counsel Well-Known Member

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    Once they are in your care you would fall under the definition of being a parent to the child and may use FMLA leave like any other parent if they get sick or otherwise need care for which FMLA leave may be used. However, nothing in the statute or FMLA regulations provides bonding leave for a person who simply becomes the guardian/custodian of a child. Read literally, the regulation only covers placement of a child by adoption or foster care. See 29 CFR § 825.121. Nor do I see any court cases that have expanded the definition of foster care in the statute or regulation to include situations like guardians and custodians. So my take on it is that the employer is probably on firm ground in denying you FMLA bonding leave. You may want to ask a local employment law attorney about your exact situation, however.
     
  10. cbg

    cbg Super Moderator

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    Hmm. Link doesn't work for me now, either, and I can't find the original quickly. Will have to look again later.
     
  11. Zigner

    Zigner Well-Known Member

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    the "df" got cut off from ".pdf" add .df to the end of the link
     
  12. Zigner

    Zigner Well-Known Member

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    The problem is that the child in question is not being "placed" with the OP for adoption or foster care.

    SEC. 102. LEAVE REQUIREMENT . (a) IN GENERAL.--
    • (1) ENTITLEMENT TO LEAVE.--Subject to section 103, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
      • (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
      • (B) Because of the placement of a son or daughter with the employee for adoption or foster care.
      • (C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
      • (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
      • (E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty ) in the Armed Forces.

      (The Family and Medical Leave Act of 1993, as amended | U.S. Department of Labor)

      §825.100 The Family and Medical Leave Act.
      (a) The Family and Medical Leave Act of 1993, as amended, (FMLA or Act) allows eligible employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 12 workweeks in any 12 months (see §825.200(b)) because of the birth of a child and to care for the newborn child, because of the placement of a child with the employee for adoption or foster care, because the employee is needed to care for a family member (child, spouse, or parent) with a serious health condition, because the employee's own serious health condition makes the employee unable to perform the functions of his or her job, or because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on active duty or call to covered active duty status (or has been notified of an impending call or order to covered active duty). In addition, eligible employees of a covered employer may take job-protected, unpaid leave, or substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 26 workweeks in a single 12-month period to care for a covered servicemember with a serious injury or illness. In certain cases, FMLA leave may be taken on an intermittent basis rather than all at once, or the employee may work a part-time schedule.

      Electronic Code of Federal Regulations (eCFR)

     
  13. Tax Counsel

    Tax Counsel Well-Known Member

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    I agree. After reading the Fact Sheet 28B that cbg linked (after you pointed out it was a pdf) it says nothing about bonding leave for being appointed a guardian or custodian of a child. The statute and regulations consistently refer to bonding leave following the birth of a child or when a child is placed with the employee by adoption or foster care. Being appointed the guardian or custodian of a child is not the same thing as placement by adoption or foster care, and thus is not covered.

    The Fact Sheet and the regulations do make it pretty clear, as I pointed out earlier, that after the appointment as guardian/custodian the child will be treated the same as a child of the employee for purposes of FMLA leave when the child gets sick, however.
     
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