Foster Care/Adoption FMLA

tmperry

I have an employee who has just become the foster parent of her grandchild. From what she has told us, this is more than likely going to lead to the adoption of the grandchild. My question here is about documentation. I have enough supporting documentation to grant the FMLA for the foster care - I have a copy of the "Temporary Protection Plan" in which it states the grandmother (our employee) will provide primary care to the child. I understand the law grants her 12 weeks for adoption/foster care. I've done my research and have been able to answer all questions but one...what supporting documentation do I require from here? Does she just take the 12 weeks as she chooses best fits her needs - Intermittent to cover court dates, lawyer appointments, meetings with school, counseling, etc.? Do I require some type of documentation to support that the absences are in connection to her FMLA? And what about bonding and adjustment time? What kind of documentation could be required for that? I agree with the law, to allow her the time, and I know there will be various things this leave could be used for. I'm just not sure if I grant the 12 weeks and require nothing else?
Hope that makes sense.
Thank you!

Julie Athey

As you have discovered, the FMLA regulations provide little to no information on the documentation that may be required for absences related to adoption or foster care. However, there are a few things that can be deduced from what the regs do say.

First, once a child has been placed with the employee, she is not generally entitled to intermittent leave for the purpose of caring for and bonding with the child. This is assuming that: 1) the leave is unrelated to a serious health condition; and 2) you don't allow other employees to take leave intermittently after the birth or adoption of a child. For this type of bonding/care leave, my opinion is that the documentation you already have (the TPP) should suffice.

The tricky part is what to do if the employee returns to work before using her entire FMLA allotment for care and bonding time. Once she has done that, she is no longer entitled to ordinary care/bonding leave. Be careful, however, of the word "bonding." If the employee and/or child need to attend counseling to help with the bonding/attachment process, then the child may have a serious health condition. In that situation (or if the child suffers from another serious health condition), I would follow your normal procedures for medical certification and intermittent leave.

What if the employee requests intermittent leave after placement that is related to the foster or adoption process but not a serious health condition? There really is no clear answer to this question, not that I am aware of anyway. I would ask myself the following questions:

[LIST=1]
[*]Is the reason for the requested intermittent leave sufficently related to the TPP that it could be considered to fall under it?
[*]If yes, then what documentation do I require for other types of already-certified intermittent leave? (If you don't require any such documentation, then you would need to consider the wisdom of having such a requirement for post-placement adoption/foster leave. If you do, then I would try to come up with an equivalent requirement for post-placement adoption/foster leave.)
[*]If the requested intermittent leave is not related to the TPP, then what documentation should I require as certification of the new reason for leave?
[/LIST]

I would be interested in hearing what others have to suggest, especially with regard to what specific types of documentation could be required for post-placement leave that is related to the adoption/foster process.

Julie

tmperry

Since posting this, I've found out that she is fostering her 3 grandchildren, one of which is autistic! Her supervisor is on my back because she understands that I have to allow certain absences, she "just knows that this employee is going to abuse the leave time." (Can you visualize me rolling my eyes and pulling my hair out as I type this??? lol) The employee has already had to miss due to getting calls from the school to pick up the special needs grandchild because there is some type of situation. After doing some lengthy research and putting my head together with a few other professional heads I think I've found a good middle ground that will keep me in compliance with the law but discourage abuse of leave time. I've left the employee completely responsible to account for all time missed under her approved FMLA. I'm requiring she keep me updated with all documentation from the courts regarding her fostering her grandchildren in order to determine eligibility dates. I'm also requiring her to report to me in writing all absences - court documents showing dates and times for when she misses for hearings, notes from school when she has to pick up her special needs grandchild. As far as bonding time, all I can do is require she submit something in writing explaining her absence so that I can verify it is related to her FMLA.
Before I came to the company I am currently with, they were burnt pretty bad by an employee who was approved for FMLA for adoption. The employee abused the "bonding" time. The employer did not realize they did not have to approve intermittent and, I believe, gave her the max 12 weeks intermittent. She randomly used this time for vacations and trips - the part that burnt them was that she had no problem announcing to everyone that she was using her FMLA to take her family to Disney World, etc. and she would plan these trips randomly - not having her at work caused a great burden to her coworkers. So, now that we're facing a similar situation I have these supervisors on my back wanting my reassurance that this employee wont be abusing the time off. I can't make any guarantees of what the employee will use her approved time off for. I can only discourage it's abuse and make it a little more difficult for her to abuse it - make it more work than it's worth. I hate feeling like my hands are totally tied here but I don't see what other options I have!