Question of the Day: DOL’s New FMLA Forms

July 22, 2020

By Emily S. Pontius and Erin M. Edgerton

Question

What do employers need to know about the DOL’s new FMLA forms?

Answer

The U.S. Department of Labor (DOL) released new forms last week that employers may use to aid them in providing employees with notification, certification and leave under the Family and Medical Leave Act (FMLA). The DOL made no change to the General Notice that employers are required to post. The updated forms include:

  • Eligibility Notice, form WH-381 – used to inform employees whether they are eligible for FMLA leave.
  • Rights and Responsibilities Notice, form WH-381 (combined with Eligibility Notice) – used to notify employees of the requirements and expectations for an employee taking FMLA leave and informs employees that leave may be denied if information is not submitted promptly and properly.
  • Designation Notice, form WH-382 – used to inform employees that a FMLA leave request has been approved or denied—or that additional information is needed—and discloses whether and how much of the leave will be paid and counted against FMLA entitlement for the year.
  • Five Certification forms (WH-380-E, 380-F, 384, 385 and 385-V) – an optional tool used by employers to request information to support certain FMLA-qualifying reasons for leave.

These forms are different from the previous versions, but not monumentally so, and most of the differences are in the appearance, not the substance. We note some helpful changes as well as areas where employers may choose to provide additional information or clarification:

  • The Notice of Eligibility and Designation Notice provide a clearer description of how earned PTO may be used concurrently with FMLA leave.
  • The Designation Notice, form WH-382 states that if the need for leave changes, the employee must notify the employer “as soon as practicable.” This language is taken from the regulations but may confuse employees if the employer has established a call-in policy. If you have a call-in policy, consider modifying the form to require employees to notify the employer according to the call-in policy or as soon as practicable.
  • The Designation Notice also takes care to explain to employees how to cure an incomplete or insufficient certification and requires the employer to explain to the employee exactly what is incomplete or insufficient.
  • The Healthcare Provider Certification forms state clearly that an employer may not require an employee to provide FMLA certification from their healthcare provider in order to request leave to bond with a newborn, adopted or foster child.

If employers choose to do so, they may continue to use the DOL’s previous forms or their own forms or modify the new forms, so long as those customized documents contain the same information as the DOL’s new forms.

The DOL is asking for feedback regarding these forms. The DOL specified seven questions but has also made clear that it will accept all feedback on these forms and the FMLA leave-request process in general.

Takeaway

The DOL has issued new FMLA forms that could prove more valuable to your business than the old forms. The public feedback period is open now, and employers may use this opportunity to submit their concerns to the Department of Labor.

Consult your Fredrikson & Byron Employment & Labor attorney about FMLA leave issues.


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