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In June, the United States Department of Labor (“DOL”) revised some of its Family and Medical Leave Act (“FMLA”) forms. While the DOL generally reserves form revisions for changes in the law, it appears these revisions were geared towards making the forms more understandable for employers and employees alike. The timeframes for providing employees with these forms has not changed. But remember that the initial Notice of Eligibility & Rights and Responsibilities form must be provided quickly, within five (5) days to an employee requesting FMLA leave.  Employers should be prepared to send out all of the forms promptly and to stay in touch with employees to ensure that their’ responses to employer requests are timely returned, as well.

The DOL revised four of its FMLA forms.

• The Notice of Eligibility & Rights and Responsibilities form (available here) was significantly reorganized to be more understandable to employees. The revised form aims to more comprehensively lay out the rights and responsibilities the employee has under FMLA. The form also provides more clarity on information required by FMLA regulations such as how many hours the employee has worked towards their 1,250 hours of service threshold, the impact FMLA leave will have on employee benefits, and whether FMLA leave will run concurrently with workers’ compensation or other disability coverage.

• The only major change to the Designation Notice (available here) is that employers are now given ample opportunity to explain what information is missing that makes an employee’s certification incomplete or insufficient.

• Certification of Health Care Provider forms, typically completed by an employee’s health care provider also have some added clarity that aims to make the information received from health care providers more useful to the employer. Those forms are available here for an employee’s own serious health condition and available here for a family member’s serious health condition.

• The forms now ask the health care provider to provide a “best estimate” of the future treatment that will be required for the employee or family member’s serious health condition.

• The form for an employee’s own serious health condition now requires the health care provider to point to at least one essential function of the job that the employee will be unable to perform.

• Finally, the forms instruct health care providers that listing “lifetime,” “unknown,” or “indeterminate” as the duration of incapacity is of limited use to employers and may not provide enough information to determine FMLA coverage.

Despite issuing new versions of FMLA forms, employers are still not required to use any specific form for administering FMLA. Employers remain free to use the old forms or even their own forms. Use of the DOL’s revised forms, though, ensures that you have the relevant information needed to comply with the FMLA and ensures that your employees are properly advised of their rights and responsibilities.

Note, of course, that FMLA applies only to “covered employers.” For the private sector, covered employers are those who have 50 or more employees in 20 or more workweeks in the current or previous calendar year. Public-sector employers are covered no matter how many individuals they employ, but those with less than 50 employees may not have any employees who are individually eligible to use the benefit,  This is because employee eligibility criteria includes working at a facility with 50 or more employees within a 75-mile radius and having worked at least 1,250 hours in the last year. Covered employers should have an FMLA policy that adheres to the FMLA and its regulations and contains employer obligations that the employer can and does consistently follow (even if the covered employer has no eligible employees). Adopting and adhering to an FMLA policy that tracks applicable law ensures that employees are aware of their FMLA rights, ensures that the employer will handle FMLA leave requests consistently, and provides legal defenses to certain FMLA claims that can be brought by employees.

These revised FMLA forms are not applicable to leave taken under the Families First Coronavirus Response Act (“FFCRA”). Properly documenting FFCRA leave has its own set of requirements distinct from those of the FMLA.  However, even in the midst of the COVID-19 pandemic, for eligible employees, the FMLA forms should still be used for non-COVID-19 related leaves, they may be used for post-COVID-19 continuing illnesses, and also for those taking leave due to a heightened risk of severe illness if they contract COVID-19.

Keep in mind that employees are entitled to the paid sick leave portion of the FFCRA no matter how much FMLA leave they have used in the preceding 12 months, but will have their available emergency FMLA reduced by the amount of regular FMLA time already used in the preceding 12 months. Eligible employees may take up to 12 workweeks of leave between regular and emergency FMLA.

For more information on the FMLA forms and for frequently asked questions about them, visit the DOL’s Website.

By Chad Karsten and Sheralee Hurwitz

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