HDR thirdshift
Featured 

Six good reasons to use new model FMLA forms

In June, the U.S. Department of Labor (DOL) issued new forms that can be used to meet the notice and certification requirements of the Family and Medical Leave Act (FMLA). Here are six good reasons to use these new model forms.

1. The new forms are easier for employees to understand.

The new forms use simple wording. The forms also have easy-to-use check boxes to steer both employers and employees through the process of providing required notice, determining eligibility, requesting additional needed information, and certifying serious health conditions. Simple wording and check boxes increase the chances that the forms are filled out correctly.

2. The new forms can bolster employee confidence in the decision making involved with the FMLA.

Because the new forms are the “official” forms, they establish legitimacy with employees. The new forms provide information from a neutral governmental source that should help employees appreciate that an employer is not just “making things up,” but is committed to doing things the right way. Likewise, in some cases, the forms make it clear to employees that they also have certain obligations. The forms can also make it clear to healthcare providers that employers are “within their rights” to require certain information in the certification process.

Here are four examples of how the forms can reduce questions about employer practices required by the FMLA:

  1. The notice of eligibility states that paid leave runs concurrently with FMLA leave.
  2. The designation notice reflects that employers are responsible for designating leave as qualifying under the FMLA, reflecting the DOL’s 2019 opinion letter that stated employees can’t opt out of 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.”
  3. The notice of eligibility (WH-381) has a simplified checkbox approach to defining spouse, child, and parent, which should be helpful in stepping the employee through the complex process of determining eligibility when these terms are defined in different ways, depending on the circumstances of the leave request.
  4. The new certification forms (see section I of WH-380-E and WH-380-F) say that an employee may not request a certification for FMLA leave to bond with a healthy newborn child or a child placed for adoption or foster care.

Again, these are the “official” government forms, not merely the employer’s “policy” or the opinion of a human resources (HR) representative. HR personnel are therefore likely to spend less time answering questions and conferring with employees about their eligibility. Bottom line: The new forms take some of the guesswork out of the FMLA process.

3. The new forms are safer to use than forms you create yourself.

The FMLA regulations are fairly stringent on what information an employer must provide to employees. Because the DOL created these forms, they inform employees of everything they need to know and provide a virtually fail-proof checklist for doing just about everything that employers need to do. In short, an employer reduces the risk of leaving out a required piece of information or skipping a step if the new model forms are used. If employers want to continue using custom forms, they should still review the model forms to make sure everything is included.

4. Using the new forms is faster than creating your own.

Since the new model forms contain all necessary information, it’s faster to adopt them than to create or modify custom forms. Besides, if employers really want to provide additional material, they can always attach an addendum to the model form.

5. In the era of COVID-19, the new forms provide a “touchless” way of meeting the requirements of the FMLA.

The forms can be filled in and signed electronically. No in-person meeting or exchange is required!

6. The new “official” form may motivate healthcare providers to more accurately and completely supply the information they need to provide to employers.

The new certification forms include a box in which the healthcare provider can indicate there is no serious health condition. With the previous version of the form, some healthcare providers got the impression that they had no choice but to confirm that the employee or a family member had a serious medical condition even if they believed otherwise. The new forms give healthcare providers the option of concluding that no serious health condition exists.

The new certification forms have language that strongly prompts the healthcare provider give a best estimate of how long the employee’s medical condition will last. The old forms mention a requirement for a best estimate (buried in the middle of a long paragraph) and require the healthcare provider to indicate the “probable duration of condition.” In contrast, the new forms expect the healthcare provider to fill in a blank after this prompt: “Provide your best estimate of the duration of the treatment(s), including periods of recovery.” [Emphasis in the original.] When a healthcare provider doesn’t provide the needed information, sending the provider a copy of the model form with the appropriate section highlighted may be an easy way to politely suggest the need to provide the information—so long as the employer doesn’t request or require the use of any particular form (model, custom, or something else).

But be careful. Like most areas of employment law, there are some tricky issues to navigate. Employers must accept any valid certification regardless of its format. So this means employers can’t require an employee to return to his or her healthcare provider to get a new certification form completed if the employee has already provided a completed old certification form. Employers also can’t reject certification information because the healthcare provider has used a format the healthcare provider likes better. For example, the certification could be a letter written on a physician’s letterhead or official documentation issued by the military. Of course, if the healthcare provider’s document doesn’t contain the needed information, the employer can request additional information. Adopting the new model forms is one way to assist employees in providing the right information, but employers cannot force healthcare providers to use any particular form.

Summary of forms and their uses

Form WH-380-E
Full title:
Certification of Healthcare Provider for Employee’s Serious Health Condition Under the FMLA
Use: When a leave request is due to the medical condition of an employee.

Form WH-380-F
Full title:
Certification of Healthcare Provider for Family Member’s Serious Health Condition Under the FMLA
Use: When a leave request is due to the medical condition of an employee’s family member.

Form WH-381
Full title:
Notice of Eligibility & Rights and Responsibilities Under the FMLA
Use: (a) To inform employees of their eligibility for leave or at least one reason why an employee is not eligible. (b) To inform employees of expectations and obligations associated with a leave request and the failure to meet those obligations.

Form WH-382
Full title:
Designation Notice Under the FMLA
Use: (a) To inform employees that leave is approved or denied because of ineligibility or because more information is needed. (The new form has an easy checkbox and fill-in-the-blank approach for the employer to request additional needed information.) (b) To inform an employee of the amount of leave that is designated and counted against the employee’s entitlement.

Form WH-384
Full title:
Certification for Military Family Leave for Qualifying Exigency Under the FMLA
Use: When a leave request arises out of the foreign deployment of an employee’s spouse, son, daughter, or parent.

Form WH-385
Full title:
Certification for Serious Injury or Illness of a Current Service Member for Military Caregiver Leave Under the FMLA
Use: When the employee requests leave to care for a family member who (a) is a current service member and (b) has a serious injury or illness.

Form WH-385-V
Full title:
Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave Under the FMLA
Use: When the employee requests leave to care for a family member who (a) is a covered veteran and (b) has a serious injury or illness.

FMLA Poster

Because there has been no change to the FMLA’s legal requirements, the current FMLA poster is still acceptable. You can download a free copy of the poster from the DOL’s website.

Key points about new forms

1. You are not required to use them. You can continue to use the previous versions of the forms (set to expire on August 31, 2021) or custom forms. For certification, accept the required certification information in any form provided; but remember you can ask for additional information if necessary and appropriate.

2. You can use your own forms, but be careful. Make sure you include all the information you are required to tell employees. Don’t ask employees for more information than the regulations allow. See 29 C.F.R. §§ 825.306, 825.307, and 825.308.

3. Don’t send any completed forms to the DOL. The forms are to be given to employees or kept in the employer’s files. (The DOL won’t ask to see the forms unless the department begins some type of investigation.)

4. These forms don’t apply to requests for leave under the Families First Coronavirus Response Act (FFCRA). Under the FFCRA’s expansion of the FMLA, an employee may be entitled to 12 weeks of paid leave because the COVID-19 pandemic has closed the school or childcare facility of an employee’s child. The documentation requirements for this leave are different.

5. Stay tuned to the Third Shift Employment Law blog because the new forms were also issued with a request for information (RFI) about the effectiveness of the current FMLA regulations. This RFI signals that DOL may changes to the current FMLA regulations in the future. As soon as we find out what those proposed changes are, we’ll let you know.

A version of this post was published in the November 2020 issue of the Alabama Employment Law Letter and the Southeast Employment Law Letter published by BLR.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2020

Will Congress Extend Families First Act Leave into...
Employers must inform separated employees about po...
 

By accepting you will be accessing a service provided by a third-party external to https://www.thirdshiftblog.com/