On July 17, 2020, the U.S. Department of Labor (DOL) issued new model notices and forms to be used by employers in the administration of the FMLA. The DOL anticipates these revised forms will increase compliance with the FMLA and make life easier, both for the health care providers who fill out the forms and for the employers who make decisions based on the information. The changes will hopefully make it faster and easier to determine if the reason for leave is a serious health condition covered by the FMLA and reduce the need for employers to go through the time-consuming process of seeking additional, follow-up information from health care providers.
Among other things, the revised forms include fewer questions that require a written response. Instead, such questions are replaced with statements that require the health care provider simply to check a box if the statement applies. In the previous forms, health care providers provided narrative responses that sometimes failed to answer clearly the underlying question of whether the health care provider thought the employee had a serious medical condition. By narrowing the scope of the information provided by health care providers, the DOL hopes the new forms will eliminate the need for this speculation and clarification.
The new forms also request additional valuable information through questions that actually encourage health care providers to explain not just the current treatment but potential future treatment as well (the current forms only focus on what has already been done to treat the patient).
These forms as well as the previous forms, are optional for employers to use as the FMLA does not require the use of any specific form or format.
Employers can use the following optional forms to provide the notices required under the FMLA.
General Notice, the FMLA poster – satisfies the requirement that every covered employer display or post an informative general notice about the FMLA. This notice can also be used by employers with eligible employees to satisfy their obligation also to provide FMLA general notice to employees in written leave guidance (e.g., handbook) or individually upon hire.
Eligibility Notice, form WH-381 – informs the employee of his or her eligibility for FMLA leave or at least one reason why the employee is not eligible.
Rights and Responsibilities Notice, form WH-381 (combined with the Eligibility Notice) – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
Designation Notice, form WH-382 – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.
There are five DOL optional-use FMLA certification forms.
Certification of Healthcare Provider for a Serious Health Condition
Employee’s serious health condition, form WH-380-E – use when a leave request is due to the medical condition of the employee.
Family member’s serious health condition, form WH-380-F – use when a leave request is due to the medical condition of the employee’s family member.
Certification of Military Family Leave
Qualifying Exigency, form WH-384 – use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
Military Caregiver Leave of a Current Servicemember, form WH-385 – use when requesting leave to care for a family member who is a current service member with a serious injury or illness.
Military Caregiver Leave of a Veteran, form WH-385-V – use when requesting leave to care for a family member who is a covered veteran with a serious injury or illness.
All of the above forms can be found at: https://www.dol.gov/agencies/whd/fmla/forms.
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