Make sure your supervisors know that FMLA is an issue when an employee is in the process of adopting or fostering a child. Employees should also be educated so that they know to provide adequate notice of the need for leave from the very beginning of the adoption process.
The regulations state that employees are entitled to leave before the actual placement of a child in their home when the absence is required in order for the adoption to proceed.
Everyone, and especially supervisors, needs to know that adoption is a time-consuming process that can involve travel (both before and at the time of the placement for adoption); paperwork; court appearances; meetings with adoption agencies, social workers, and birth mothers; doctor’s visits, and visits to various governmental offices. Employees are entitled to leave for all these purposes.
It’s not surprising that supervisors and managers would tire of a long series of absences, but they have to accept it without complaint or retaliation of any kind.
Employers may want to consider a procedure for verifying that employees have started the adoption process and for designating any related absences as FMLA leave. Although the FMLA doesn‘t specifically mention it, there is nothing to preclude you from asking employees to provide some type of certification for adoption leave, especially for intermittent leave before employees actually have custody of the child.
The usual medical certification form is not appropriate for this purpose, but you could simply ask the employee to provide something from his or her attorney or adoption agency:
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If the adoption takes a long time—as they often do——you could request periodic updates and/or recertifications.
If the prospective adoptive parents are taking time off together for tasks that further the adoption, you may insist that only one take the time off is the task is one that either could do alone, such as standing in a line at government offices or filling out paperwork.
Employees who are adopting domestically may take leave to be at the hospital when their child is being born. Similarly, we recommend that employers allow employees to take leave for the birth of their child by a surrogate.
Note that the source of the child (e.g., whether from a licensed placement agency or otherwise) is not a factor in determining eligibility for leave.
Finally, after the adoption, employers do not have to allow intermittent leave for bonding, although they do have to allow it if the adopted child has a serious health condition.
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