[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.112]



[Page 754-755]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents

 

Subpart A_What is the Family and Medical Leave Act, and to Whom Does It 

                                 Apply?

 

Sec.  825.112  Under what kinds of circumstances are employers required 

to grant family or medical leave?



    (a) Employers covered by FMLA are required to grant leave to 

eligible employees:

    (1) For birth of a son or daughter, and to care for the newborn 

child;

    (2) For placement with the employee of a son or daughter for 

adoption or foster care;

    (3) To care for the employee's spouse, son, daughter, or parent with 

a serious health condition; and

    (4) Because of a serious health condition that makes the employee 

unable to perform the functions of the employee's job.

    (b) The right to take leave under FMLA applies equally to male and 

female employees. A father, as well as a mother, can take family leave 

for the birth, placement for adoption or foster care of a child.

    (c) Circumstances may require that FMLA leave begin before the 

actual date of birth of a child. An expectant mother may take FMLA leave 

pursuant to paragraph (a)(4) of this section before the birth of the 

child for prenatal care or if her condition makes her unable to work.

    (d) Employers covered by FMLA are required to grant FMLA leave 

pursuant to paragraph (a)(2) of this section before the actual placement 

or adoption of a child if an absence from work is required for the 

placement for adoption or foster care to proceed. For example, the 

employee may be required to attend counseling sessions, appear in court, 

consult with his or her attorney or the doctor(s) representing the birth 

parent, or submit to a physical examination. The source of an adopted 

child (e.g., whether from a licensed placement agency or otherwise) is 

not a factor in determining eligibility for leave for this purpose.

    (e) Foster care is 24-hour care for children in substitution for, 

and away from, their parents or guardian. Such placement is made by or 

with the agreement of the State as a result of a voluntary agreement 

between the parent or guardian that the child be removed from the home, 

or pursuant to a judicial determination of the necessity for foster 

care, and involves agreement between the State and foster family that 

the foster family will take care of the child. Although foster care may 

be with relatives of the child, State action is involved in the removal 

of the child from parental custody.



[[Page 755]]



    (f) In situations where the employer/employee relationship has been 

interrupted, such as an employee who has been on layoff, the employee 

must be recalled or otherwise be re-employed before being eligible for 

FMLA leave. Under such circumstances, an eligible employee is 

immediately entitled to further FMLA leave for a qualifying reason.

    (g) FMLA leave is available for treatment for substance abuse 

provided the conditions of Sec.  825.114 are met. However, treatment for 

substance abuse does not prevent an employer from taking employment 

action against an employee. The employer may not take action against the 

employee because the employee has exercised his or her right to take 

FMLA leave for treatment. However, if the employer has an established 

policy, applied in a non-discriminatory manner that has been 

communicated to all employees, that provides under certain circumstances 

an employee may be terminated for substance abuse, pursuant to that 

policy the employee may be terminated whether or not the employee is 

presently taking FMLA leave. An employee may also take FMLA leave to 

care for an immediate family member who is receiving treatment for 

substance abuse. The employer may not take action against an employee 

who is providing care for an immediate family member receiving treatment 

for substance abuse.