On July 16, 2020 the Department of Labor (“DOL”) unveiled its new FMLA forms. As we previously reported, the DOL announced its plan to revamp the forms in August 2019. However, the DOL made further revisions to the August 2019 drafts based on public comments. The new forms can be used to comply with many technical nuances of the FMLA, but, like prior versions, are voluntary.

The new forms are:

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 webpage also features a Q&A section regarding the new forms. Because the forms are voluntary, the DOL reiterates that employers are free to use the old or “expired” forms and to modify the new forms. The DOL cautions, however, that employers may not seek information beyond that specified in the FMLA regulations or refuse a certification that contains all the information needed to determine if the leave qualifies for the FMLA.

The stated purpose of the recent revisions was to make them “easier to understand.” Consistent with this objective, the new forms seek more pointed responses and offer examples and explanations.

Significantly, the new forms limit written responses and reduce the guess work (both for medical providers completing the forms and employers interpreting the responses).”

The new medical certification forms are also likely to temper the amount of information medical providers offer regarding serious health conditions. The prior certification forms invited medical 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 forms now expressly state that this information is not “required,” and note that certain information (e.g., diagnosis) may be restricted by state or local law. The forms offer only a couple of lines to provide specific details.

The minimalist certification forms have pros and cons. It may be easier and faster to complete the new forms. Also, the revisions are likely to curb inconsistent or incomplete responses from medical providers. However, it is unclear how the potential lack of medical information will impact the administration of the leave itself, particularly in cases involving intermittent leave or multiple serious health conditions.

These changes are not the only changes contemplated by the DOL.  In addition to the new forms, the DOL 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 struggles and successes that come along with 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 have your voice be heard.  Jackson Lewis can assist you in submitting comments on these topics.

 

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

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Photo of Francis P. Alvarez Francis P. Alvarez

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by…

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees.

Counseling hundreds of employers each year, Mr. Alvarez spearheads the firm’s effort to provide imaginative and creative solutions to the complex array of workplace disability and health management issues faced by both large and small companies. In the Jackson Lewis tradition, Mr. Alvarez counsels clients with the goal of either avoiding litigation entirely or improving outcomes before administrative agencies, courts and juries.

Mr. Alvarez especially enjoys assisting clients conduct the “individualized assessment” required by a growing number of federal and state laws. These efforts include helping employers effectively communicate with employees and medical providers in an effort to evaluate potential risks to health and safety posed by employee injuries or illnesses. In an area of law in which there often are few bright lines, Mr. Alvarez attempts to develop practical and constructive solutions centered on the concept he calls “tc2” — taking care of employees and taking control of risks.

Recently, Mr. Alvarez has begun leading the Firm into another exciting and fast-developing area of workplace law called “health management.” Challenged by increases in health care and work injury costs, employers are searching for innovative ways to motivate employees to participate in wellness and health promotion programs. Mr. Alvarez leads a team of Jackson Lewis attorneys who advise employers on ways to implement these important programs while complying with emerging and largely undeveloped federal and state law protections.

Mr. Alvarez writes and speaks frequently on disability management issues, including legal developments under the Americans with Disabilities Act and the Family and Medical Leave Act. He has delivered presentations at major speaking engagements, including SHRM’s national and legislative conferences. Throughout his legal career, Mr. Alvarez has represented employers as lead counsel in both trial and appellate courts and has successfully tried employment discrimination claims to verdict.

Photo of Patricia Anderson Pryor Patricia Anderson Pryor

Patricia Anderson Pryor is a Principal and Litigation Manager of the Cincinnati, Ohio, office of Jackson Lewis P.C. She is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

Patricia Anderson Pryor is a Principal and Litigation Manager of the Cincinnati, Ohio, office of Jackson Lewis P.C. She is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

Ms. Pryor represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, the OFCCP, and the NLRB, in addition to various state agencies.

Ms. Pryor also works with employers to avoid litigation by developing effective policies and practices, including harassment policies, social media policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation/pay equity reviews.

She is a frequent speaker at legal seminars and to employers and professional groups and provides training to managers and human resource professionals on a wide variety of employment and legal issues, including wage and hour issues, harassment, disability, the Family and Medical Leave Act, pay equity and affirmative action obligations. She has been featured on the radio program “Employment Straight Talk” and has published a number of employment law articles.

While attending law school, Ms. Pryor was a member of the editorial board of the University of Cincinnati Law Review.

Learn more about Ms. Pryor on the Jackson Lewis website.

Photo of Catherine A. Cano Catherine A. Cano

Catherine A. Cano is an Associate in the Omaha, Nebraska, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. She helps clients navigate state, federal, and local leave and disability laws and has experience in…

Catherine A. Cano is an Associate in the Omaha, Nebraska, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. She helps clients navigate state, federal, and local leave and disability laws and has experience in litigation and arbitration in several areas, including employment discrimination, retaliation and whistle blower claims, and non-competes and unfair competition.

Learn more about Ms. Cano on the Jackson Lewis website.