Q. We have an employee who has given their manager notice applying for adoption leave. We have not received such a request before from an employee and are uncertain about a number of matters relating to adoption leave. Our main query is that the child being placed for adoption with the employee is approximately 8 years of age. We presumed the entitlement to adoption leave only applied to the adoption of a baby or young child (say under the age of 5 years). Is the employee entitled to take adoption leave in this circumstance? 

 

A. Under the National Employment Standards, an eligible employee is entitled to adoption-related unpaid leave. The leave must be associated with the placement of a child under 16 years of age with the employee for adoption and is part of the unpaid parental leave provisions. An employee can apply for up to 12 months unpaid adoption leave and may request an additional 12 months, although this can be refused on reasonable business grounds.  

 

Under the National Employment Standards (s.68), an employee is not entitled to adoption-related leave unless the child is, or will be, at the day of placement: 

  • under 16 years of age; and 
  • has not, or will not have, lived continuously with the employee for 6 months or more; and 
  • is not (otherwise than because of the adoption) a child or stepchild of the employee’s spouse or de facto partner. 

 
To qualify for the leave, an employee (including a long-term casual employee) must have completed at least 12 months of continuous service with the employer immediately before the day of placement of the child for adoption. An employee must provide at least 10 weeks’ notice (unless not reasonably practicable), specifying the intended starting and finishing dates of the leave, of an intention to take adoption leave and provide reasonable evidence of the adoption. 

An employee is entitled to up to 2 days (either continuously or in separate periods as agreed with the employer) of unpaid pre-adoption leave to attend any interviews or examinations (evidence of which to be provided to the employer) in order to obtain approval for the employee’s adoption of the child. However, an employee is not entitled to take pre-adoption leave if other leave can be taken, e.g. annual leave and the employer would prefer the employee to take another form of leave. 

As the age of the child being placed for adoption, in this case, is 8 years of age, the employee can apply for unpaid adoption leave, provided the employee satisfies the other qualifying provisions. 
 

Bottom Line 

An employee is eligible to take adoption leave if they have at least 12 months continuous service with the employer and the child being placed for adoption is 16 years of age.