FMLA certification — or not — for adoption
The road to adopting a child can be a rewarding experience, but often it’s not without some trepidation or glitches for employees traveling down that path. When employees let employers know they’re adopting a child, employers might initially respond with “congratulations” messages. Then they will likely (and wisely) put on their federal Family and Medical Leave Act (FMLA) hats.
FMLA paperwork rules
One of the first steps for employers is to determine whether employees meet the eligibility criteria to take FMLA leave. The next step is to inform employees by giving them an FMLA eligibility/rights and responsibilities notice within five business days. Employers might also give employees:
- The company's FMLA policy,
- An FMLA leave request form,
- A letter explaining the FMLA process, and
- A copy of the FMLA poster.
But wait! Where is the certification form? Since the leave would be protected by the FMLA, shouldn’t a certification form be included?
While there are several FMLA certification forms, none exist for adoption or otherwise bonding with a healthy child. Unless the child has a serious health condition, there should be no certification form required for adoption.
FMLA certifications exist for an employee’s own serious health condition, that of a family member, a qualifying exigency (military family leave), a caregiver of a current military member, and a caregiver of a veteran military member.
The Department of Labor’s Wage and Hour Division indicates in a fact sheet that:
“The employer may not request a certification for leave to bond with a newborn child or a child placed for adoption or foster care.”
Since there is no serious health condition and no family military leave involved, there would be no one who would complete a certification.
What to request
This doesn’t mean that employers are left with nothing. Employers may request reasonable documentation or a statement of a family relationship. This may take the form of a simple statement from employees or court documents.
Employers are entitled to examine official documents, but they must return them to employees.
Generally, employees get to choose what to give to employers. Employers may require employees to put their statements in writing.
Employers may have forms for this, and those forms may include language such as: “By signing this form, the employee understands that any misrepresentations made in the statement, or any other misrepresentation related to this FMLA request, may result in the denial of the request and discipline per company policy.”
The form can also certify, via employee signature, that all the statements made are true and accurate to the best of the employee’s knowledge.
Key to remember: Employers may not ask for a certification supporting FMLA leave taken for adoption, but may ask for documentation or a statement of the family relationship.