Back in the fall of 2019, the Department of Labor (DOL) requested comments from the public on modifications to the optional-use forms provided for purposes of the Family and Medical Leave Act (FMLA). Based on that feedback, the DOL has published updated FMLA forms that employers can use to provide required notices to employees, and for employees to provide certification of their need for leave for an FMLA qualifying reason. These forms are electronically fillable PDFs and can be saved electronically. Employers may still continue to use their own forms, as long as they provide the same basic notice information and require only the same basic certification information.
The revised forms are meant to be simpler and easier to understand for employers, leave administrators, health care providers, and employees seeking leave. Updates include fewer questions that require written responses, replaced by statements that can be completed by checking a box, and—in support of minimized contact—electronic signature features.
The changes are intended to reduce the amount of time it takes a health care provider to provide information, and to help leave administrators review and communicate information to employees more directly and with greater clarity, reducing the likelihood of violations.
The revised FMLA forms include the following:
- Eligibility and Rights and Responsibilities Notice, Form WH-381
- Designation Notice, Form WH-382
- Certification for Employee’s Serious Health Condition, WH-380-E
- Certification for Family Member’s Serious Health Condition, WH-380-F
- Certification for Qualifying Exigency, WH-384
- Military Caregiver, Leave of Current Servicemember, WH-385
- Military Caregiver, Leave of a Veteran, WH-385-V
The DOL also provided FAQs to address employee and employer questions about the revised forms:
The DOL revised the optional-use FMLA forms in June 2020. Can I still use the old DOL forms?
Yes. The FMLA does not require the use of any specific form or format. Although the DOL revised the FMLA forms in June 2020 to make them easier to understand for employers, leave administrators, health care providers, and employees seeking leave, the revised forms convey and collect the same information, which can be provided in any format.
Can my employer require me to provide a new certification, using the revised form, when I have already provided the required FMLA information using the old certification form?
No. You can provide the required information contained on a certification form in any format. If you used the old certification forms to provide your employer with the required FMLA information, you do not need to provide your employer with the same FMLA information using the revised certification forms.
Can my employer make changes to the FMLA forms?
Your employer may use the prototype forms or create their own version of the forms containing the same basic information. However, an employer that requests a medical certification may request only information that relates to the serious health condition for which the current need for leave exists, and no 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 I need to use my employer’s certification forms?
Employers must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying. The employer 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 communication on the letterhead of the health care provider.
The expiration date of the DOL forms has passed, are they still effective?
Yes. The content of the information contained within the optional-use DOL form is still applicable, regardless of the expiration date. The expiration date on the DOL forms is related to the collection of information as required by the Office of Management and Budget (OMB), and not relevant to the content of the required information.
Where do I send the completed certifications or notices?
Do not send any completed certifications or forms to the U.S. Department of Labor, Wage and Hour Division. The employer should provide the required notices to the employee seeking leave. Completed certification forms should be given to the employee to provide to the employer, as it is the employee’s responsibility to provide the employer with the completed certification.
Do these forms have any applicability to the Families First Coronavirus Response Act (FFCRA)?
MRA has provided sample forms specific to FFCRA. Members can find them by visiting our dedicated COVID resources webpage.
The U.S. Department of Labor’s Wage and Hour Division (WHD) also announced steps to improve workers’ and employers’ experiences with the use of FMLA by publishing a Request for Information (RFI) in the Federal Register seeking the public’s feedback on the administration and use of the law.
Questions being asked include:
- What, if any, challenges have employers and employees experienced in applying the regulatory definition of a serious health condition?
- What, if any, specific challenges or impacts do employers and employees experience when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule?
- What are the best practices and suggestions to improve implementation of the act’s intermittent leave provisions?
- What, if any, specific challenges do employers and employees experience when employees request leave or notify their employers of their need for leave?
- What, if any, are the challenges employers and employees have experienced with the medical certification process that are not addressed by the newly revised forms?
- Would it be helpful to provide additional guidance regarding the interpretations contained in any of the opinion letters issued over the past two years?
- Is there information or any available data regarding other specific challenges that employers experience in administering FMLA leave or that employees experience in taking or attempting to take FMLA leave.
Written comments need to be submitted by September 15, 2020.