Do LGBTQ Parents Who Adopt Get Parental Leave?

Written by Jonathan Breeden

August 29, 2018

Whenever you bring a new child into the family, you want to spend time with them. This time is a necessity. Infants and young children must be taken care of and supervised 24 hours a day. Your child will also an emotional and psychological needs. As a new parent, you need to bond with your child. But in the U.S., there are always questions regarding parental leave, particularly if you are not a woman who gave birth.

Under the federal Family Medical Leave Act (FMLA), you may have a right to some unpaid time off after birth or adoption, whether you are in an opposite-sex or same-sex relationship. North Carolina does not have a parental leave law. If you are not entitled to time off under federal law or through your employer’s policy, then you may only be entitled to use your sick days, paid vacation, and unpaid leave.

To learn about your rights regarding parental leave after adoption, speak with an experienced LGBTQ adoption lawyer at Breeden Law Office by calling (919) 661-4970 or reaching out through our online form.

Do LGBTQ Parents Who Adopt Get Parental Leave?

LGBTQ parents who adopt a child only get parental leave if they are eligible under the FMLA or if their employers’ internal policies. Options for parental leave for all parents, no matter their gender or sexual orientation, are extremely limited in the U.S.

Eligibility for Parental Leave Under the FMLA

The FMLA entitles eligible employees to time unpaid time off for certain family and medical reasons. If you are in a same-sex relationship and you and your partner adopted a child, you should each determine whether you are covered by the FMLA.

The FMLA only applies to certain employers:

  • Private-sector companies with 50 or more workers in 20 or more workweeks within the current or former calendar year
  • Federal, state or local government, regardless of the number of employees
  • Private or public elementary and secondary schools, regardless of the number of staff members

To be eligible for leave under the FMLA, you must work for one of these types of employers and meet other eligibility requirements:

  • Work at a location where there are at least 50 employees within 75 miles
  • Work for the employer for at least 12 months
  • Have at least 1,250 hours of service for that employer during the 12 months immediately preceding when you would take leave

If your employer is not required to adhere to the FMLA, then your ability to take parental leave depends on your employer’s policy.

FMLA Parental Leave

If you are eligible for unpaid leave under the FMLA, then you may take up to 12 workweeks off within a 12-month period. You may use this time for the birth of a child or the placement of a child in your house through adoption or foster care. This law applies equally to individuals in opposite-sex or same-sex relationships. You cannot be denied FMLA leave because you identify as LGBTQ.

Your employer may require that you substitute all or a portion of your FMLA leave with your paid sick or vacation time. That means your employer may not let you take off more time with your paid sick or vacation days. For example, if you have two workweeks of vacation saved up, your employer can require you to take these as part of your parental leave, and then you would only have 10 more works of unpaid FMLA leave. You can also choose to do this so that your entire parental leave is not unpaid.

Have Questions About Adoption?

If you are interested in going through the adoption process and you have questions about possible parental leave, do not hesitate to contact Breeden Law Office. Attorney Jonathan Breeden is experienced in representing individuals and couples through the adoption process in North Carolina, and we are prepared to help you navigate the issues surrounding adding a new member to your family. To schedule a consultation of your case, contact us today at (919) 661-4970.


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