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March 21, 2019

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What Am I Doing Wrong?? Common FMLA Mistakes

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 21st blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Dictating the documentation an employee provides to establish a family relationship.

It is common knowledge that employees can take FMLA leave due to a serious health condition of an immediate family member, which is defined under the law as a spouse, parent, and son or daughter.

The FMLA regulations also permit an employer to request documentation confirming the relationship, within certain parameters.

An employer may choose to require an employee to provide reasonable documentation of the covered family relationship when an employee seeks leave for the care of a family member with a serious health condition.  This documentation may take the form of a simple statement from the employee, a child’s birth certificate, a court document, etc. The employer is entitled to examine the documentation, and the employee is entitled to the return of the official document submitted for this purpose. 29 CFR § 825.122(k).

According to the U.S. Department of Labor, it is the employee’s choice whether to provide a simple statement or other documentation. Therefore, an employer should not dictate the specific type of documentation it wants to review. Further, employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee’s exercise or attempt to exercise FMLA rights. Therefore, such a request should be reasonable based on the particular situation.

This is a discrete issue under the FMLA, and case law on this particular regulation is virtually nonexistent. However, employers should be aware of their ability to confirm covered family relationships, and how to properly do so, in accordance with the FMLA regulations.

Jackson Lewis P.C. © 2019

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About this Author

Sheri Giger, Jackson Lewis, human resource policy attorney, employment labor development lawyer,
Principal

Sheri L. Giger is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Her practice focuses on preventive human resource policy development, training and counseling and advice.

Ms. Giger also works on policy/handbook development, particularly for multi-state issues and compliance. She also works with compliance issues under the American with Disabilities Act, as amended, and the Family and Medical Leave Act, as amended. Ms. Giger counsels and conducts extensive training on topics such as anti-harassment...

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