Proposed New FMLA Forms Under Review

The U.S. Department of Labor (the “DOL”) is revising its optional-use notice forms under the Family Medical Leave Act (the “FMLA”).  The DOL has reported that the changes are being made to increase compliance with the FMLA, make the forms more user-friendly, and reduce the number of forms employers receive that are returned incomplete or require additional clarification.

The DOL is proposing to revise the following forms:

  • 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-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

Updates to the forms were long overdue.  While the certification forms for a serious health condition and military caregiver leave were last updated in May of 2015, and the rights and responsibilities and military exigency certification forms were last updated in February of 2013, the FMLA designation notice form has not been updated for nearly a decade.

The DOL’s proposed changes will give the forms a new look and make some substantive improvements. The proposed changes include to reorganize the questions, have color-coded sections for employees, employers, and healthcare providers, and include clearer headings, bolded text, and checkboxes for employees, employers, and healthcare providers to select that will help clarify their responses. The changes also include adding checkboxes for healthcare service providers to choose from that more closely mirror the statutory definition of a serious health condition so employers can readily determine whether a serious health condition exists. Similarly, various sections were reworked to elicit clearer responses from healthcare providers regarding the amount and type of leave required, and the duration and frequency of leave medically necessary in the case of leave taken on an intermittent basis.

The proposed revised forms are available on the DOL’s Wage and Hour Division website here. As of the date of this publication, however, employers should continue to use the current FMLA forms, as the new forms are still under review.

The DOL is presently soliciting comments on the proposed changes through October 4, 2019. Information on how to submit a comment is available here.

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