FMLA Qs- general/federal and NY

mrs&mrsk · January 2015

1st Question- I think this is federal?

if you are taking second parent / non bio FMLA for bonding are there any rules to when it has to start - birth date?

If so, does the employer set these rules or would the government?

2nd question- i think this is state regulated?
If you are adopting as well, does your employer have to follow the same rules as their biological parent maternity leave- ie full pay for 6 weeks (where they do offer)?

( I am assuming that this has to overlap FMLA if so, depending on employer rules)

Semi-related- how long does 2nd parent adoption take in NY? Any recommendations for lawyers?
TIA!

twobrooklynmoms · January 2015

Not sure what state the above case was tried in, but I believe the point of second parent adoption for NYers is that even legally married couples may not be recognized in other states/outside of the US. As far as NY is concerned, second parents don't need to adopt.

JGY · January 2015

I don't have full answers for anything ... in fact I don't have partial answers for anything. But I'm throwing my thoughts out here in case any of this is helpful:

1. I know nothing about non-birthing parent FMLA. Sorry!

2. In most cases (in all cases that I know of, but allowing that there are some more generous employers out there) the "Pay" portion of paid maternity leave is actually a short-term disability claim. So by the very nature of what they are insuring, pay is only granted for recovery from a medical condition (childbirth). And that pay is typically at 60% of your normal salary (I know CA is different, and state regulated, but I don't believe NY is). It does all come down to your individual employer, and I know that many employers do offer SOME leave that is paid at 100% for both the birthing and non-birthing parent, but it's typically more in the 1-2 week range and would definitely not be covered by short term disability.

A seperate note about adoption ... in NY, same-sex marriage is legally recognized so there's a strong possibility that you will be able to have both of your names on the birth certificate. If that is the case you are ALSO pursuing second parent adoption, I would expect some confusion from your employer about whether to base leave and benefit decisions on the birth date or the adoption date.

Good luck!

JGY · January 2015

@robertjane33 - So I've been pondering this question a lot, as our second child will be born in a state that now allows both of us to be on the birth certificate. I understand that other states may not recognize our marriage, however can they disregard the parental rights of someone who is listed on the birth certificate? I mean, the outcome of our entire 2nd parent adoption process for Mr. G. was to get his birth certificate amended to include both of our names. So essentially ... the outcome is the same. Right?

What am I missing? That's an honest question, not a snarky one. It seems black and white to me, but I know that it never is. And while I'd love to avoid a consultation with our (very expensive) lawyer, I'm pretty confident we'll need one. I'd just love to be as prepared as possible walking into it.

Karlamo · January 2015

So I understand what the NY laws are getting at; you can't adopt your own kid. With us being in Massachusetts, there are no second parent adoptions. While we are both on the birth certificate, I am highly paranoid and do not trust that all states whether they recognize same sex marriage or not; would see us both as legal mothers. Therefore, we both adopted R. My wife being the birth mother had to "surrender" her rights to R and then we both adopted him together. It's all very strange but was handled by a attorney specializing in gay adoptions. As for getting money back on our taxes for this; my lesbian financial advisor laughed and said the gov't doesn't reimburse for adopting your own kids. Good point! In some ways I'm glad that Massachusetts is so progressive that to them R was ours right from the get go.

ball.and.chain · January 2015

JGY said:
2. In most cases (in all cases that I know of, but allowing that there are some more generous employers out there) the "Pay" portion of paid maternity leave is actually a short-term disability claim. So by the very nature of what they are insuring, pay is only granted for recovery from a medical condition (childbirth). And that pay is typically at 60% of your normal salary (I know CA is different, and state regulated, but I don't believe NY is). It does all come down to your individual employer, and I know that many employers do offer SOME leave that is paid at 100% for both the birthing and non-birthing parent, but it's typically more in the 1-2 week range and would definitely not be covered by short term disability.

My parental leave was actually separate from disability. My firm gives 4w of paid parental leave that is just that -- paid by the firm, and used for "parents" regardless of sex, gender, or how they became parents. Dads, non-gestational parents and adoptive parents are all eligible for the 4w. I also got 5w short-term disability on top of that, at 100% of my salary (it would normally be 60% but my firm supplements -- yes I know I have awesome benefits) -- I was only eligible for this because of my "medical" condition of pregnancy and would not have been entitled to it if I hadn't given birth.

That said, I do think some companies have separate maternity and paternity leaves and that those policies are dependent on whether or not you are giving birth.

mrs&mrsk · January 2015

My company supplements short term disability as well. If DWs pays it's probably the same thing. Someone at her job said they got paid when adopting, but who knows what the full circumstances were.

The main thing I am trying to figure out is if her fmla for bonding can be used after my 6 weeks .... I think the website above that I read earlier as well implied that it can. Her HR is saying it has to start on his birth date. Will have to read into it more.

mrs&mrsk · January 2015

And thank you everyone

JGY · January 2015

ball.and.chain said:

JGY said:
2. In most cases (in all cases that I know of, but allowing that there are some more generous employers out there) the "Pay" portion of paid maternity leave is actually a short-term disability claim. So by the very nature of what they are insuring, pay is only granted for recovery from a medical condition (childbirth). And that pay is typically at 60% of your normal salary (I know CA is different, and state regulated, but I don't believe NY is). It does all come down to your individual employer, and I know that many employers do offer SOME leave that is paid at 100% for both the birthing and non-birthing parent, but it's typically more in the 1-2 week range and would definitely not be covered by short term disability.

My parental leave was actually separate from disability. My firm gives 4w of paid parental leave that is just that -- paid by the firm, and used for "parents" regardless of sex, gender, or how they became parents. Dads, non-gestational parents and adoptive parents are all eligible for the 4w. I also got 5w short-term disability on top of that, at 100% of my salary (it would normally be 60% but my firm supplements -- yes I know I have awesome benefits) -- I was only eligible for this because of my "medical" condition of pregnancy and would not have been entitled to it if I hadn't given birth.

That said, I do think some companies have separate maternity and paternity leaves and that those policies are dependent on whether or not you are giving birth.

Jealous. I wish my company was that generous.

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