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We are in the midst of a global pandemic, with many employers struggling financially to survive. Yet, surprisingly, the biggest news from the U.S. Department of Labor (DOL) is not new safety rules intended to protect employees from the novel coronavirus. Instead, last Friday, the DOL published revised optional-use forms to comply with the Family and Medical Leave Act (FMLA).
In early August 2019, the DOL had requested comments from the public on modifications to these forms. Based on that feedback, the DOL has now published updated forms that employers can use to provide legally required notice to their employees and for employees to comply with their requirement to provide certification of their specific need for FMLA leave. The updated forms are electronically fillable PDFs and can be saved electronically.
The newly revised forms include the following:
- Notice of Eligibility & Rights and Responsibilities, Form WH-381
- Designation Notice, Form WH-382
- Certification of Health Care Provider for Employee’s Serious Health Condition, Form WH-380-E
- Certification of Health Care Provider for Family Member’s Serious Health Condition, Form WH-380-F
- Certification for Military Family Leave for Qualifying Exigency, Form WH-384
- Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave, WH-385
- Certification for Serious Injury or Illness of Veteran for Military Caregiver Leave, Form WH-385-V
The updated model forms contain a new expiration date – June 20, 2023.
The new model notices and forms look different in their appearance (e.g., more response boxes, electronic signature feature, employee’s name on the top of each page, more colorful, etc.). The following are some critical changes to some of the forms:
Notice of Eligibility
- The new Notice more clearly outlines employee rights and responsibilities, requires the employee to identify which family members the employee will care for, and explains how paid leave will run concurrently with FMLA (and provides additional boxes for employers to check on this issue).
- Although the Notice states that employees have 15 days to return the certification (similar to the old form), that is not accurate. The DOL’s regulations state that the employee must return the certification within 15 calendar days of receipt (unless the employer provides more time to return the certification). 29 C.F.R. §825.313. So, the statement in the new Notice is accurate only if an employer hand delivers or e-mails the Notice to the employee.
- The new form includes a statement in Section I specifying that employers are responsible for designating leave as FMLA-qualifying (to avoid employees who want to “opt out” of FMLA leave). This pronouncement is consistent with the DOL’s 2019 opinion letter in which the agency opined, “An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”
- The DOL included separate boxes for an employer to check when an employee’s medical certification is “incomplete” or “insufficient.”
- The new form includes a box in which the health care provider can confirm that there is no “serious health condition.” In contrast, the old form left the impression that a health care provider was obligated to check one of the boxes confirming the employee or family member had a serious health condition, even if the medical facts did not support that determination.
- The new form includes a new section requiring the health care provider to provide a “best estimate” of the employee’s or immediate family member’s future treatment.
- The new form states in the first paragraph of Section I that an employer “may not” request a certification for FMLA leave to bond with a healthy newborn child or a child placed for adoption or foster care.
Questions and Answers about the New FMLA Forms
- Can my company still use the old DOL forms?
Yes. The FMLA does not require the use of any specific form or format.
- If we already provided an employee the old certification form, can we require the employee to complete another certification using the new form?
No. If the employee was provided the old form and provided the requested information, the employee cannot be required to provide you with the same information using the new form.
- Can we make changes to the FMLA forms?
You can use the DOL forms or create your own version of the forms containing the same basic information. However, when you request a medical certification, you may request only information that related to the serious health condition for which the current need for leave exists, and no other information may be required beyond that specified in the FMLA regulations. See 29 CFR §825.306, 29 CFR §825.307, and 29 CFR §825.308.
- Do we have to accept a certification from an employee that wasn’t prepared using our form?
Employers must accept a complete and sufficient certification, regardless of the format. You cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying. You cannot refuse:
- A fax or copy of the certification;
- A certification that is not completed on the employer’s standard company form; or
- Any other record of the medical documentation, such as a communication on the letterhead of the healthcare provider.
- Are the old DOL forms still effective, even though the expiration date has passed?
Yes. The content of the information contained within the optional-use DOL form is still applicable, regardless of the expiration date.
- Do these forms have any applicability to the Families First Coronavirus Response Act (FFCRA)?
No. The FFCRA has different documentation requirements, which can be found at 29 CFR §826.100 or www.dol.gov/agencies/whd/pandemic/ffcra-questions. Please see question & answer items #15 and #16 for more information.
Finally, the DOL also published a Request for Information seeking input from the public regarding potential changes to the current FMLA regulations. The DOL is accepting comments through September 15, 2020. We will continue to monitor developments in this area.