Adoptive Leave Act 2005

The main provisions of the Adoptive Leave Act as amended in 2005 are as follows:

Duration of Adoptive Leave
• 24 weeks' adoptive leave without pay on the day of placement of a child
• up to 16 weeks additional adoptive leave (optional)

* Although Adoptive Leave is generally unpaid, some employees may have secured a contract of employment which provides for payment during the period of leave. Employees with enough PRSI contributions may qualify for Adoptive Benefit which is paid by the Department of Social and Family Affairs for the 24 weeks of adoptive leave. Additional adoptive leave is not covered by Adoptive Benefit, nor is the employer obliged, unless otherwise agreed, to make any payment during this period. If an employee on additional adoptive leave becomes ill, he/she can ask the employer for permission to terminate the additional adoptive leave and then transfer onto sick leave for which Illness Benefit or sick pay may be paid.

Who is Eligible for Adoptive Leave?
• an employed adoptive mother
• an employed sole male adopter
• an employed adopting father - where the adopting mother has died

There is no service qualification under the Act.

Additional Adoptive Leave
An employee, who has taken adoptive leave, is also entitled to sixteen weeks' additional adoptive leave which is unpaid. An employee must notify the employer at least four weeks before the end of the paid adoptive leave if s/he wishes to take additional leave. The additional adoptive leave commences immediately after the adoptive leave.

Entitlements of Adopting Fathers in Certain Circumstances
If the adopting mother dies, the adopting father is entitled to adoptive leave for one of the following periods as appropriate:
(a) in a case where the adopting mother dies on or after the day of placement 16 weeks less the period between the date of placement and the date of her death or,
(b) in any case 16 weeks.

Entitlements of Adopting Fathers regarding Additional Adoptive Leave
If the adopting mother dies, the adopting father is entitled to additional adoptive leave, if he so requests as follows:
(a) in case the adopting mother dies on or after the expiration of 16 weeks from the day of placement, 8 weeks less the period between the date of that expiration and the date of her death or,
(b) in any case, 8 weeks.

Postponement of Adoptive Leave
In a case where the day of placement is postponed, the start of the adoptive leave period will also be postponed provided the employed adopting mother or sole male adopter notifies his/her employer of the expected new day of placement as soon as is reasonably practicable.

Foreign Adoptions
In the case of foreign adoptions, some or all of the additional adoptive leave may be taken immediately before the placement date.

Additional Adoptive Leave before the Day of Placement
In the case of a foreign adoption where the adopting mother dies, some or all of the additional adoptive leave may be taken immediately before the day of placement.

Placement of Less than 16 Weeks' Duration
Where the placement of the child is for a period of less than 16 weeks (other than as a result of the death of the child), the adopting parent is required to give notice in writing to the employer (or cause the employer to be so notified) of the date of termination of placement as soon as is reasonably practicable but not later than 7 days after the date.

Notification of Adoptive Leave
Adequate notice, in writing, must be given to the employer. An employee must inform the employer, in writing, as soon as is reasonably practicable of the expected date of placement. The minimum advance notice in writing is 4 weeks before the expected date of placement and 4 weeks before the commencement of additional leave. 4 weeks' notice in writing is also required of the date of the return to work.

Evidence of Placement for Employer
Evidence of placement must be provided to the employer by the employee as soon as is reasonably practicable. In the case of an Irish adoption, this means not later than 4 weeks after the day of placement. In the case of a foreign adoption, an employee must give the employer a copy of the declaration of eligibility and suitability before the start of adoptive leave or additional adoptive leave (whichever is the earlier). Details of the placement must be provided to the employer as soon as is reasonably practicable after that.

Time Off to attend Certain Pre-Adoption Classes and Meetings
Employees are entitled to time off work, without loss of pay, to attend pre-adoption classes and meetings within the State which are necessary as part of the adoption process – subject to certain conditions as to the number of pre-adoption classes and meetings to be attended, the amount of time off to be allowed for attendance, the terms and conditions relating to the time off; notification procedures and the evidence of attendance to be furnished to the employer. Under the Act an employee is obliged to notify the employer in writing of the dates and times of the classes or meetings concerned as soon as practicable but not later than two weeks before the date of the first class, the employee is also obliged to provide on request from the employer, an appropriate document indicating the dates and times of the classes concerned.

Termination of Additional Adoptive Leave on Sickness of Adopting Parent
Subject to agreement by the employer, an adopting employee may terminate additional (unpaid leave) in the event of the employee becoming ill. Once the leave is terminated, the employee's absence from work is treated in the same manner as any other absence from work due to sickness. The employee ceases to be entitled to any adoptive leave not taken by then.

Postponement of Leave on the Hospitalisation of the Adopted Child
An adopting employee may request the employer in writing to postpone the adoptive leave or additional adoptive leave in the event of the hospitalisation of the adopted child. The postponed leave may be taken in one continuous period beginning not later than 7 days after the child is discharged from hospital.

Absence from Work owing to Sickness while Leave is postponed
An employee who returns to work having postponed leave on the hospitalisation of the adopted child, and who is subsequently absent from work due to sickness will be deemed to have recommenced the leave which was postponed unless the employee decides to take sick leave, in which case the untaken postponed leave is forfeit.

Employment Rights
All employment rights, other than remuneration and superannuation benefits are preserved whilst on adoptive leave.

Adoptive Leave and Public Holidays
You are entitled to leave for any public holidays that occur while on adoptive leave, and additional adoptive leave.

Right to Return to Work
The employee has a right to return to work after a period of adoptive leave or additional adoptive leave. She or he has the right to return to the job which she or he held immediately before the start of the period and under the contract of employment under which she/he was employed immediately before the start of that period, (or where there is a change of ownership has occurred to an identical contract of employment with the successor) or in either case under terms or conditions that are not less favourable than those that would have been applicable, and that incorporate any improvements in the terms and conditions of employment to which the employee would have been entitled.

If it is not reasonably practicable for the employer or the successor to permit the employee to return to work in line with the above, the employee shall be entitled to be offered suitable alternative employment in accordance with a new contract of employment. This should be suitable and appropriate for the employee concerned and the terms and conditions of employment should not be less favourable than those that would have been applicable in the contract of employment immediately before the start of the protective leave; and should incorporate any improvements in the terms and conditions of employment to which the employee would have been entitled.

Returning to Work
An employee must give 4 weeks written notice to the employer before the end of adoptive or additional adoptive leave.

Disputes
A dispute concerning an employee's entitlement, under the Adoptive Leave Act 2005, may be referred to a Rights Commissioner not later than six months from the day of placement. Either party may appeal the decision of a Rights Commissioner within four weeks of the date of the decision of the Rights Commissioner.

PRSI Credits
If additional unpaid adoptive leave is taken immediately following paid Adoptive Leave the employee will be entitled to a PRSI credit in respect of each week taken up to a maximum of 8 weeks. This will ensure that existing cover for social welfare benefits is fully maintained. Employees should ensure that the employer completes the application form for adoptive leave credits and returns it to the Department of Social & Family Affairs.

More Favourable Provisions
Nothing in the Act prohibits the inclusion in an agreement of an additional provision that is more favourable to an adopting parent than the provisions of the Adoptive Leave Act.
The inclusion of an additional provision in an agreement does not confer any right on an employee who is not an adopting parent.

This briefing note is not a legal interpretation of the Act, and the Act in full should be consulted for the precise legal provisions.