DOL Issues New FMLA Forms and Notice Poster; Publishes Final Regulations for Military Family Leave

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New Poster and Forms
The U.S. Department of Labor (DOL) has issued revised model Family and Medical Leave Act (FMLA) forms and notice poster. Although they contain no substantive revisions, the new forms should be used immediately. Following are links to the revised poster and forms:

• Notice Poster
http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf

• WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
http://www.dol.gov/whd/forms/WH-380-E.pdf

• WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
http://www.dol.gov/whd/forms/WH-380-F.pdf

• WH-381 Notice of Eligibility and Rights & Responsibilities
http://www.dol.gov/whd/forms/WH-381.pdf

• WH-382 Designation Notice
http://www.dol.gov/whd/forms/WH-382.pdf

• WH-384 Certification of Qualifying Exigency For Military Family Leave
http://www.dol.gov/whd/forms/WH-384.pdf

• WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave
http://www.dol.gov/whd/forms/WH-385.pdf

• WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
http://www.dol.gov/whd/forms/wh385V.pdf

The notice poster summarizes the FMLA and tells employees how to file a complaint. The new poster must be displayed in a conspicuous place where employees and applicants for employment can see it. The poster must be displayed at each of an employer’s locations even if there are no eligible employees at the location. Electronic posting is permitted, as long as it otherwise complies with the regulations. Employers who use a multi-statute “all-in-one” notice poster should make sure that it contains the new FMLA notice poster.

Final Military Family Leave Regulations
The DOL has also issued final regulations clarifying the 2008 and 2010 amendments to the FMLA that expanded the FMLA to provide military family leave.

Qualifying Exigency Leave
The 2008 FMLA amendments allowed employees to take leave for qualifying exigencies related to a family member’s service in the National Guard and Reserves. The 2010 amendments expanded qualifying exigency leave to a family member’s service in the Regular Armed Forces and added the requirement that the servicemember be deployed to a foreign country for an employee to be eligible for qualifying exigency leave.

The DOL’s final regulations further expand qualifying exigency leave by adding “parental care leave,” which allows an employee to take leave to provide care for a military member’s parent who is incapable of self-care when the care is necessitated by the member’s covered active duty. The new regulations also extend the time an employee may take off to spend with a military member on “Rest and Recuperation” leave from five to 15 days.

Military Caregiver Leave
The 2008 FMLA amendments established caregiver leave that allowed certain family members to take 26 workweeks of FMLA leave in one 12-month period to care for a covered servicemember with an injury or illness incurred in the line of duty on active duty for which the servicemember was receiving medical treatment, recuperation or therapy. The 2010 FMLA amendments expanded the definition of servicemember to include veterans, as long as they were a member of the Armed Forces within five years of receiving medical treatment, recuperation or therapy. To protect the leave entitlement of family members or veterans whose five-year period has expired or been reduced, the final regulations state that the time between October 28, 2009 (the date the 2010 amendments were enacted) and March 8, 2013 (the effective date of the regulations) does not count for purposes of determining the five-year period.

The new regulations also expand the definition of serious injury or illness to include a servicemember’s pre-existing conditions that were aggravated in the line of duty.

Certifications
The final rules also provide that a FMLA military leave certification can be signed by any health care provider authorized to certify a FMLA medical certificate for other FMLA-qualifying reasons. An employer may request a second or third opinion for a military leave medical certification under certain circumstances.

Additional Assistance
If you have any questions about these final FMLA regulations, the notice poster or forms, please contact any of the attorneys on our Labor & Employment Practice Team.

Labor & Employment Attorneys

James D. Donathen (716) 847-5476 jdonathen@phillipslytle.com
Marc H. Goldberg (518) 472-1224 Ext. 1229 mgoldberg@phillipslytle.com
James R. Grasso (716) 847-5422 jgrasso@phillipslytle.com
Christopher L. Hayes (716) 504-5725 chayes@phillipslytle.com
Amanda L. Lowe (716) 504-5747 alowe@phillipslytle.com
Michael R. Moravec (716) 847-7021 mmoravec@phillipslytle.com
Kevin J. Mulvehill (585) 238-2095 kmulvehill@phillipslytle.com
Linda T. Prestegaard (585) 238-2029; (212) 508-0425 lprestegaard@phillipslytle.com