DOL Publishes New FMLA Forms – Solicits Input on FMLA

On July 16, 2020, the Department of Labor (“DOL”) unveiled its new FMLA forms. In August 2019, the DOL had announced plans to modify the forms.

The new forms are listed below and can be found here.

• WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
• WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
• WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
• WH-381 Notice of Eligibility of Rights & Responsibilities
• WH-382 Designation Notice
• WH-384 Certification of Qualifying Exigency for Military Family Leave
• WH-385 Certification for Serious Injury or Illness of Covered Servicemember – for Military Family Leave
• WH-385V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The DOL website also features a Q&A section regarding the new forms. Although the DOL revised the FMLA forms 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. Use of the forms is voluntary. Employers may use the DOL forms or create their own versions 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.

The new forms limit written responses and reduce the guess work for medical providers completing the forms and employers interpreting the responses. The prior certification forms provided space for providers to describe medical facts related to the condition, including “symptoms, diagnosis, or any regimen of continuing treatment,” and dedicated several blank lines to respond. The new forms now expressly state that health care providers: “may, but are not required to, provide other appropriate medical facts including symptoms, diagnosis, or any regimen of continuing treatment such as the use of specialized equipment. Please note that some state or local laws may not allow disclosure of private medical information about the patient’s serious health condition, such as providing the diagnosis and/or course of treatment.”

While it may be easier and faster to complete the new forms and the revisions should limit the inconsistent or incomplete responses from health care providers but is unclear how the failure to include a diagnosis or other medical information may impact the administration of the leave, specifically for cases of intermittent leave.

The DOL also published a Request for Information, which solicits feedback on changes employers and employees would like to see in the FMLA regulations “to better effectuate the rights and obligations under the FMLA.” The Request for Information asks for comment on the following topics, but emphasizes that feedback on unrelated FMLA issues is welcome:

• The definition of “serious health condition,” difficulties regarding the definition of “chronic condition,” and situations in which employers/employees believe the definition of “serious health condition” was over- or under-inclusive.
• Intermittent leave and reduced schedule leave, and challenges related to the timing of employee requests.
• The employee notice requirements under the FMLA and whether employers/employees have sufficient understanding of their rights and obligations under the FMLA to effectively communicate.
• Challenges related to the medical certification process that are not addressed in the revised forms.
• Whether issues in recent opinion letters should be addressed through the regulatory process.
• Any specific information or data related to challenges with administering FMLA leave.

The Request for Information presents employers with an opportunity to share the issues and challenges they have encountered while administering the FMLA. The DOL is accepting comments through September 15, 2020. For employers who have struggled with FMLA abuse by their employers, the DOL’s Request for Information provides a unique opportunity to provide feedback to the DOL.

For more information, please contact Theresa M. Zechman or the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.