Articles – Adoptive parent needs to fight for her rights.

The following column, authored by Lindsay Novak, originally appeared in the Chicago Tribune on March 23, 1997, and is reprinted with their permission.

Adoptive parent needs to fight for her rights.

I requested a leave under the Family and Medical Leave Act to care for my newly adopted daughter. At the university where I work, biological mothers can use paid sick leave during their leave of absence, so at least part of their medical leave is paid time. Adoptive mothers, however, are not allowed to do this. Is it legal for the school to distinguish between biological and adoptive mothers in this manner?

A – It’s hard to imagine a university administering such policies without checking with its legal department. Eugene Hollander, a lawyer concentrating in labor and employment law in Chicago, says there are no cases on this issue, but he believes it is impermissible for an employer to make such a distinction. “One of the stated purposes of the FMLA, says Hollander, is to entitle employees to take reasonable leave for medical reasons for the birth or adoption of a child. An eligible employee may take up to 12 work weeks of leave because of the placement of a son or daughter with the employee for adoption or foster care. The term `son’ or `daughter’ is further defined under the FMLA to include a biological, adopted, or foster child.

“Department of Labor regulations suggest that an employee may receive compensation for sick days while on an FMLA leave, if the employer’s usual policy is to give sick days while on maternity leave. Since the university has such a policy, you should be entitled to use your sick days.”

Hollander says that, based on the FMLA’s stated legislative purpose and definitions, Congress intended to treat adoptive and biological parents equally.

If the university refuses to change its position on your leave, you may want to consult a lawyer. An initial letter from an attorney that points out the school’s faulty policy may turn things around for you. If not, you may have to sue to recover damages, such as the employment benefit, actual monetary losses, interest, liquidated damages, attorney’s fees and court costs.