Department of Labor Issues New FMLA Forms, Questions and Answers, and a Request for Information

McNees Wallace & Nurick LLC

McNees Wallace & Nurick LLC

On July 16, 2020, the U.S. Department of Labor (“DOL”) released a series of new forms that can be used by employers and leave administrators related to the Family and Medical Leave Act (“FMLA”).  The DOL claims the new forms are simpler and easier to understand for employers, healthcare providers, and employees. Some of the more significant updates include the replacement of questions that require written responses with statements that can be completed by checking a box, and electronic signature features.  The new forms can be found through using the links below:

Employer FMLA Notice Forms:

  • Eligibility Notice (form WH-381) – This form is used to notify employees of their eligibility for FMLA leave (or the reason(s) they are not eligible).
  • Rights and Responsibilities Notice (form WH-381) – This form is used to notify eligible employees of the specific expectations and obligations associated with their FMLA leave request, including the requirement to provide a certification addressing the need for FMLA leave, if applicable.
  • Designation Notice (form WH-382) – This form is used to inform employees whether their FMLA leave request is approved or whether additional information is needed to approve or deny the requested leave.

FMLA Certification Forms:

These new forms, like prior versions of the DOL’s FMLA forms, can be used by employers to comply with their obligations under the FMLA.  However, employers are not required to use the new FMLA forms.

In a Q&A section addressing the newly released FMLA forms, the DOL states that the FMLA does not require the use of any specific form or format.  Thus, employers may use the DOL’s forms (either the older or newer versions) or they may create their own versions of the FMLA forms.  If an employer creates its own FMLA forms, however, the forms should be reviewed by legal counsel to ensure compliance with the FMLA regulations. The entire Q&A section addressing other aspects of the new FMLA forms can be found at the bottom of the page on the DOL’s website.

In addition to the new streamlined FMLA forms, the DOL also issued a Request for Information, which asks for feedback from the public regarding the effectiveness of the current FMLA regulations.  Through this process, employers can provide feedback and suggestions regarding issues they have experienced in administering the FMLA in their workplaces.  Employers have until September 15, 2020 to provide their feedback and suggestions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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