Legal Clinic 'Very Uncomfortable' Request for FMLA Leave

Question: We have a very uncomfortable situation at work. One of our employees has asked for FMLA paternity leave to take care of a newborn child whom he claims is his. The problem is, this employee did not give us any prior notice of the birth, and his wife (whom he lives with) is not the mother of this child. He has apparently fathered this child with one of the women whom he has been having an affair with. Can we ask this employee to provide us proof that he is, in fact, the father of this child as a requirement for granting him FMLA leave?

Wednesday, April 10, 2013
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Answer:  Yes. You can certainly ask this employee to provide some documentation that he is the child's father, although the employee is not required to submit to an actual paternity test. Both the mother and the father are permitted to take 12 weeks of leave to care for a newborn, unless they are both employed by the same employer, in which case they can take a combined total of 12 weeks of leave. Leave for the care of a healthy newborn must be completed within one year from the birth. 29 C.F.R. §825.120.

Your question raises two important issues concerning this employee's leave request. The first issue is whether he can assert his paternity of this child with sufficient documentation to satisfy the terms of the statute. The second issue is what responsibility the employee has to provide the employer with notice of his leave request, and what responsibility the employer has to accommodate the request for leave after not receiving any advanced notice.

A.         Asserting Paternity of an Extra-Marital Child

The Department of Labor ("DOL") has promulgated regulations under the Act, including definitions of family relationship terms. Under the regulations in Fact Sheet #28F, "a 'son or daughter' means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and 'incapable of self-care because of a mental or physical disability' at the time that FMLA leave is to commence." If the employee claims that the newborn is his biological child, the employee must provide some documentation that meets the criteria outlined in the statute as follows:

For purposes of confirmation of family relationship, the employer may require the employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child's birth certificate, a court document, etc. The employer is entitled to examine documentation such as a birth certificate, etc., but the employee is entitled to the return of the official document submitted for this purpose. 29 C.F.R. pt. 825.122(j).

Thus, the employee can satisfy the documentation requirement with even a "simple statement" that he is the child's father. Under the particular circumstances outlined in your question, it might be reasonable for the employer to request a birth certificate, affidavit or other proof of paternity, though this is a legal "gray area."  The employee may decline to provide such information, but it is reasonable for the employer to make the request.

Ultimately, if the employee claims to be the father of the child and provides a statement to that effect, the required family relationship will likely be seen as having been demonstrated, and the FMLA leave request should be granted.

B.         Employee Notice Requirements under the FMLA

The FMLA's notice requirements recognize two types of FMLA leave: foreseeable and unforeseeable. An employee must give 30 days' notice for foreseeable leave. If the employee gives less than that, the employee must respond to a request from the employer to explain the failure to provide the full 30 days and the employer may be able to delay protected leave depending on the facts of the case. 29 C.F.R. §825.302. If the leave is unforeseeable, the employee must provide notice to the employer as soon as possible and practical. Fact Sheet #28E.

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Your scenario presented by the reader's question is unclear as to why the employee did not provide advanced notice of the birth of his child. Certainly, childbirth is an event that is foreseeable, despite the fact that the precise timing of delivery is not known ahead of time. It is possible that the employee did not know of the pregnancy prior to the birth, or did not know whether he was the child's father. If this is the case, the leave request was probably unforeseeable. In that case, assuming the employee provided notice to his employer as soon as "possible and practical," the leave should be granted without delay.

If the employee knew prior to the birth that he was the child's father, then the employer has the right to request an explanation as to why he did not request leave sooner. The employee should provide an explanation and the employer may determine whether the explanation is reasonable. According to DOL regulations:

When the employee has no reasonable excuse for not providing at least 30 days advance notice, the employer may delay the FMLA leave until 30 days after the date notice is provided. When the employee could not have provided 30 days advance notice, but has no reasonable excuse for not providing a shorter period of advance notice, the employer may delay the FMLA leave by whatever amount of time that the employee delayed in notifying the employer. Id.

While the timing of the employee's notice is important, the content of the employee's notice is less so. The employee's notice may be verbal or written, and if it is the employee's first time requesting FMLA leave, he or she does not need to specifically mention the FMLA. The "employee is required to provide enough information for the employer to know that the leave may be covered by the FMLA, and when and how much leave the employee anticipates needing to take." Id. Assuming the employee in the reader's question has complied with these minimal content requirements, the employer should grant the leave as soon as possible given the lack of notice.

Although the employer may be upset over the somewhat unusual circumstances and lack of notice, it is advisable that the FMLA leave be granted as soon as practicable because interference with protected FMLA leave can expose the employer to liability and significant monetary damage awards.

Keisha-Ann G. Gray is senior counsel in the labor & employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Elizabeth Spector assisted with this article.

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