On July 17, 2020, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) released new model notices and forms that may be used by employers to administer the Family and Medical Leave Act (“FMLA”). While these updates appear to be primarily to format and appearance, there are a few updates that may be of interest to employers and their FMLA administrators.
An employer is covered by the FMLA if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year. The workweeks do not have to be consecutive and once an employer meets the requirement for FMLA coverage, the employer remains a covered employer as long as it employs 50 or more employees in 20 or more workweeks in either the current calendar year or in the previous calendar year. See sections 825.104 and 825.105 of the FMLA regulations for more information about what constitutes a covered employer.
The FMLA allows an employer to require that a request for leave be supported by a certification issued by a healthcare provider of the eligible employee. An FMLA certification is a document or form that is completed by the employee and, as appropriate, a healthcare provider. The certification will allow an employer to obtain information related to the FMLA leave request and the likely periods of absences. It also serves to verify that an employee (or the employee’s family member) has a serious health condition (or in the case of military family leave, the existence of facts to support the request for leave). For more information about FMLA certifications, visit our blog post.
Employers should keep in mind that use of the following DOL’s model forms is optional, but employers may find them to be more user-friendly than the prior versions.
- WH-381 – Notice of Eligibility & Rights and Responsibilities – used to inform the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
- WH-382 – Designation Notice – used to inform the employee whether the FMLA leave request is approved and 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.
- WH-380-E — Employee’s Serious Health Condition — Leave request is due to the medical condition of the employee.
- WH-380-F — Family Member’s Serious Health Condition — Leave request is due to the medical condition of the employee’s family member.
- WH-384 — Qualifying Exigency — Leave request arises out of the foreign deployment of the employee’s spouse, son, daughter or parent.
- WH-385 — Military Caregiver Leave of a Current Servicemember — Leave request to care for a family member who is a current service member with a serious injury or illness.
- WH-385-V — Military Caregiver Leave of a Veteran — Leave request to care for a family member who is a covered veteran with a serious injury or illness.
Note that the FMLA notice poster that covered employers are required to post in the workplace has not been updated.
General Observations of the Updated Model Forms:
- The designation notice explicitly states that once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave. For more information about FMLA leave designation visit our blog post.
- The forms generally organize responses into a check-the-box format with less narrative, which ideally will help reduce ambiguities and uncertainty in interpreting a medical provider’s responses and handwriting as well as reduce the disclosure of confidential information on the form.
- The forms outline steps that an employee should take to cure an incomplete or insufficient certification and requires the employer to specifically explain what is missing and/or insufficient to the employee.
- This new format separates medical conditions into categories and otherwise provides a box in which the certifying healthcare provider can confirm that there is not a serious health condition under the FMLA.
- Explicitly states that an employer may not request a certification for FMLA leave to bond with a newborn child or a child placed for adoption or foster care.
- Includes electronic signature features to allow for completion and transmission of completed forms without physical contact. This is especially helpful and timely in light of the ongoing COVID-19 pandemic.
Employers are reminded that these revised forms do not apply to leave under the Families First Coronavirus Response Act (FFCRA), which has different documentation requirements. For more information about documentation under the FFCRA please visit our blog post.
Sequoia One Clients: Sequoia One clients are encouraged to reach out to their dedicated HR Business Partner with any questions and for additional information about FMLA administration.
- DOL – FMLA Forms
- DOL – Fact Sheet #28: Employer Notification Requirements Under the FMLA
- DOL – The Employer’s Guide to Family and Medical Leave Act
- Sequoia Blog – FMLA Focus: Certification and Re-certification for FMLA Absences
- Sequoia Blog – DOL Declares That Employers Must Designate FMLA-qualifying Leave up Front and Without Delay
Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2020 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved