Last summer, the Department of Labor (DOL) issued new FMLA forms. With the focus for much of 2020 on the COVID-19 pandemic, you may have missed it, but don’t panic. If you are using the prior version of the forms, you are not out of compliance. The content of the forms are still applicable, regardless of the expiration date. Moreover, use of the model FMLA forms issued by the DOL is optional; employers are permitted to use their own forms provided they meet the requirements outlined in the FMLA regulations. If you have been using your own forms, you may want to make some adjustments based on changes to the new forms.
What are the FMLA Forms?
The FMLA regulations require that employers provide certain notices to employees. The DOL has created model forms to meet those notice requirements. The regulations also allow employers to request certain information from employees to substantiate the reason for FMLA leave. The DOL has created model forms for that purpose.
Below is a list of the DOL model FMLA notices and forms:
- General Notice (the FMLA poster)
- Notice of Eligibility & Rights and Responsibilities (WH-381)
- Designation Notice (WH-382)
- Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E)
- Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F)
- Certification for Military Family Leave for Qualifying Exigency (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 a Veteran for Military Caregiver Leave (WH-385-V)
What Has Changed from Prior Versions?
The purpose of the revised forms, according to the DOL, is to make them easier to understand. Looking at what has changed from prior versions makes that purpose clear.
Notice of Eligibility & Rights and Responsibilities
The new model Notice of Eligibility & Rights and Responsibilities is organized into three sections: Section I – Notice of Eligibility, Section II – Additional Information Needed, and Section III – Notice of Rights and Responsibilities.
Section I – Notice of Eligibility asks employers to provide more detail for why an employee is not eligible for FMLA (i.e. they have not been employed for 12 months or haven’t met the 1,250 hours of service requirement). Section III – Notice of Rights and Responsibilities is broken down into six subparts covering leave entitlement, substitution of leave, maintaining health benefits, other employee benefits, return-to-work requirements, and other requirements. Most notably, employers are required to clarify whether FMLA leave will run concurrently other types of leave (i.e. workers’ compensation, disability leave, or state-mandated leave).
Similar to the Notice of Eligibility & Rights and Responsibilities, the new model Designation Notice is organized into three sections: Section I – Employer, Section II – Additional Information Needed, and Section III – FMLA Leave Approved.
The most notable change to the form is the inclusion of a new section on Incomplete or Insufficient Certification. This section asks the employer to explain what information is needed for a complete and/or sufficient certification. This new section may mean that an employer needs to provide multiple designation notices — once to note the incomplete or insufficient certification and again when a complete certification is provided and leave is approved.
Certification from Health Care Providers
The changes made to the certification forms require healthcare providers to more clearly identify the medical condition and amount of leave required. Healthcare providers are asked to provide a best estimate on the duration of the condition; an attempt to discourage the use of “lifetime,” “unknown,” or “indeterminate” in explaining duration of the condition. The purpose of this change is to make the certification easier to complete for healthcare providers and easier for employers to evaluate without having to ask the healthcare provider for clarifying information.
Should You Use the New Forms?
The law does not require that employers use the model notices and forms provided by the DOL. Use is optional. However, there are reasons for using the model forms.
The main reason many employers choose to use the DOL-provided forms is that they eliminate the potential of leaving out required information or requesting more information than is allowed. The FMLA regulations are very specific on what information needs to be provided to employees and what information can be requested by employers. Even if you decide to create your own forms or continue using the ones you have already created, you should review the new forms to ensure you have included everything that is needed and nothing that isn’t.
With the format of the new forms, it is easier to understand what is needed and required. The simple wording, clearer definitions, and use of checkboxes makes it more likely that the forms will be completed correctly and fully. That means employers are getting the information they need to administer FMLA leave, employees understand what their rights and obligations are, and healthcare providers provide more complete and accurate information.
FMLA can be difficult to administer. The new forms strive to make it a little bit easier.