The legislative history clearly states that it was not the committee's intent to require that FMLA leave because of a birth or placement for adoption or foster care begin on the date of the birth or placement.  Congress recognized that employees may need to begin FMLA leave prior to a birth or placement.  At the same time, 5 U.S.C. 6382(a)(2) states that entitlement to a total of up to 12 workweeks of FMLA leave based on a birth or placement expires at the end of the 12-month period beginning on the date of such birth or placement.  The result of combining these provisions is that the time period in which an employee may use FMLA leave because of a birth or placement for adoption or foster care may extend into a succeeding 12-month period. 

For example, if an employee invokes his or her entitlement to FMLA leave before the birth or placement for adoption or foster care, the 12-month period begins on that date and ends 12 months later (e.g., June 2, 1996, through June 1, 1997).  In addition, the statutory entitlement to FMLA leave for 1-year after the actual birth or placement may permit an employee to use some FMLA leave in a second 12-month period for the birth or placement (e.g., June 14, 1996, through June 13, 1997).  The second 12-month period begins immediately after the expiration of the first 12-month period.  The employee may use up to a total of 12 weeks of FMLA leave during the first 12-month period for the birth or placement.  During the second 12-month period, the employee would be entitled to use FMLA leave for care of the newborn or adopted child but only for the time period between the end of the first 12-month period and the expiration of the 12-month period after the date of birth or placement (e.g., June 2, 1997, through June 3, 1997).  During any 12-month period an employee may use no more than 12 weeks of FMLA leave.  The final regulations have been clarified to state that leave taken for the birth of a child or placement for adoption or foster care may begin prior to or on the actual date of birth or placement. 

Four commenters recommended changes that would place limitations on the rights of an employee under the FMLA.  One commenter suggested that leave without pay not formally requested under the FMLA, but granted for purposes appropriate under the FMLA, should count against the FMLA entitlement, especially if the same condition or situation prompted both the non-FMLA and FMLA leave requests.  Another commenter stated that a limitation should be placed on foster care benefits because participating in foster care programs may result in individuals becoming foster care parents for numerous children over the years.  The commenter believes this would permit individuals to invoke FMLA leave year after year, placing a terrible hardship on the agency, especially when such individuals are employed in critical positions (e.g., health care occupations).  Finally, a commenter expressed concern that an agency's mission could be disrupted seriously because the beginning and ending dates of the 12-month period of entitlement wuld allow the "stacking" of FMLA leave.  The agency recommended adopting a provision that would not allow, or at least minimize, the possibility of stacking one 12-week period onto a second 12-week period.