Intermittent FMLA leave is allowed when an employee (either male or female) has started the process to adopt or foster a child. This is an area that can easily get overlooked by supervisors (and employees) who think of the FMLA as providing leave for medical conditions.
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:
- Stating that the employee is in the process of adopting
- Describing any anticipated reasons for leave
- Estimating how long the process is expected to take
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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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Question:
Can an employer in any way regulate what the activities of the employee are when the employee has been granted fmla time after adoption ?
For example:
The employee had vacation time being used from late October to the middle of December and during that time the employee had taken 13 days of fmla time mixed in that period of time to “fill in” for days that the employee did not have vacation days in order to create a length of time that was continuous.
Is that employee in violation of Fmla rules if the employee was found to not be with the child on a selected day or selected days that are categorized as Fmla (after adoption) and not a vacation day ?
Why were the FMLA days and the vacation days “mixed in” with each other? An employer should have a policy that that the employee can use unpaid FMLA days to be on an approved LOA, and then use vacation time or take a personal leave to extend the time out of work; or the employee would be on approved vacation time, and then began an approved LOA. It could even be vacation, LOA, vacation, but the reason for being out of work should be clearly defined. Usually vacation time is consider approved time off since it’s a company provided benefit (an employee shouldn’t be getting fired while on vacation), so there isn’t a need to have FMLA (job protected time) being used at the same time.
It’s bad policy to track vacation time and intermittent FMLA time mixed in with each other. It might be difficult to “prove” a certain day was vacation vs. FMLA if the LOA time and the vacation time were not properly tracked by the employer. An employer could easily say an FMLA day was misused by how the day was categorized, which could look like they were trying to pull a fast one on the employee. I understand you believe that’s what the employee may have done to the employer, and you might be correct, but if it the situation was review by the courts, DOL, etc., they may question why the FMLA days and vacation days were tracked the way they were – as if the employee was being “set up” to misuse the time so a disciplinarily act could be performed.
Your best bet is to create a strong policy and make sure everyone is held accountable to it, so if anything suspicious happens in the future, you know how to best approach the situation. That being said, if an employee is “caught” using an FMLA day for any other reason than the approved FMLA reason (such as going to the beach instead taking a child to a doctor’s appointment), that could be reviewed by your HR. Again, policy regarding these types of situations benefits the employer – how do we “prove” the day was misused? – would the employee get a verbal or written warning? – would the employee need to have the FMLA LOA recertified (second opinion)? Do some research on FMLA laws and talk to your HR – policy will save an employer’s back every time there is a questionable situation.