New Optional-Use FMLA Forms

On July 16, 2020, following a period of public comment, the DOL published new optional-use FMLA forms. The forms were revised by the DOL to make them easier to understand and use. For instance, the forms now contain fewer questions requiring written responses. Instead, the forms use statements and check boxes. This change is intended to cut down on the time it takes to complete the form and to cut down on the need for follow up inquiries caused by incomplete responses. The forms are also divided into clearly defined sections indicating the individual or entity responsible for completion. The new forms may be found on the DOL’s website. Importantly, in its Q&A concerning the new forms, the DOL pointed out that publication of the new forms does not trigger a requirement on the part of an employee to provide information already provided through the use of the prior forms.

Seeking Public Comment

On July 17, 2020, the DOL published a request for information in the Federal Register seeking, “… information from the public regarding the regulations implementing the Family and Medical Leave Act of 1993.” The comment period is open until September 15, 2020. In a general sense, the DOL is seeking information regarding changes which would, “… better effectuate the rights and obligations under the FMLA.” Specifically, the DOL listed several areas it would like to see addressed:

• “What, if any, challenges have employers and employees experienced in applying the regulatory definition of a serious health condition?”
• “What, if any, specific challenges or impacts do employers and employees experience when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule?”
• “What, if any, specific challenges do employers and employees experience when employees request leave or notify their employers of their need for leave?”
• “What, if any, challenges have employers encountered in determining whether a certification establishes that the employee or employee's immediate family member has a serious health condition under the FMLA and the amount of leave needed?”
• Would additional guidance be helpful regarding seven recently issued opinion letters: i.e., compensability of frequent 15-minute rest breaks; no-fault attendance policies; qualification of organ donation as a serious health condition; delay in designation of leave as FMLA qualifying leave; attendance at an Individualized Education Plan meeting as a qualifying reason for intermittent FMLA leave; and, method of counting employees for FMLA eligibility in a general health district.

Additional Guidance

On July 20, 2020, the DOL provided two additional questions and answers on its COVID-19 and FMLA website. First, the DOL clarified that until December 31, 2020, telemedicine visits are acceptable for purposes of establishing a serious health condition under the FMLA provided that the visit, “… include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities.” Second, the DOL pointed out that an employer, which has implemented a neutral COVID-19 testing policy requiring all employees to be tested before they come to the workplace, can apply that policy to an employee returning from FMLA leave.

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