But if you have enough employees, a failure to regularly designate leave as FMLA-qualifying can come back to haunt you. Consider, for example, the marginally-performing employee who has consistently been missing four or five days a month because he claims to have a serious medical condition. The day after he is confronted with a poor performance review, he announces that his doctor has advised him to take 12 weeks of leave because of the stress that he has suffered at work. The employee’s supervisor is incredulous and reminds you that this employee has already taken the equivalent of nine or ten weeks leave in the past 12 months. Unfortunately, because none of the earlier leave was designated as FMLA leave, the employee may indeed still have the full 12 weeks of FMLA leave still available to him.

Last month, the Department of Labor (“DOL”) published updated forms that employers can use to provide the legally required notices to their employees, including the notice designating leave as FMLA-qualifying. Use of these forms is optional and employers are free to create their own forms so long as they comply with the statute and the regulations. However, if you have never created your own forms or it’s been a long time since you last revised them, you may want to consider using the new DOL forms.

If you are not familiar with the FMLA forms, there are two separate forms that employers should provide employees. First, there is the “Notice of Eligibility & Rights and Responsibilities” form that should be given to the employee as soon as you are aware of a condition that might be covered. This notice informs the employee of his or her eligibility for FMLA leave or at least one reason why the employee is not eligible, and also informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.

The second form is the “Designation Notice” which informs the employee whether or not the FMLA leave request is approved and the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.

The DOL has also created a new “Medical Certification” form that will typically be given to the employee at the same time that you give him the “Notice of Eligibility & Rights and Responsibilities.” (There is a separate certification form if the employee is taking leave because of a serious health condition of a spouse, child, or parent). The new certification forms also include a box where the healthcare provider can state that the employee does not fall into any of the categories that would meet the definition of a “serious health condition.”

The new DOL forms were not designed to address leave under the Emergency Family and Medical Leave Expansion Act Families First Coronavirus Response, which provides up to 10 weeks of paid leave to employees who are unable to work because the employee is caring for a child whose school or place of childcare is closed because of COVID-19.