On July 16, 2020, the U.S. Department of Labor (“DOL”) released new, streamlined forms that employers may voluntarily use for the administration of leave under the Family and Medical Leave Act (“FMLA”). In connection with the forms, the DOL’s website now includes a Q&A section addressing certain form-related questions. The DOL has been busy, considering it also published a Request for Information (“RFI”) in the Federal Register seeking feedback from the public regarding the administration and use leave under the FMLA.

New Optional-Use FMLA Forms

Nearly a year ago, the DOL announced its plan to revise its forms to, among other things, increase compliance with the FMLA and make the forms easier for the public to understand and use. The new forms, which were revised based on substantial public input, appear to do just that.

The forms now include more questions that users can answer by checking a response box, instead of responding in writing. In addition, the forms include electronic signature capabilities to reduce contact between individuals, which is a significant change in light of the COVID-19 pandemic. With respect to the medical certification forms in particular, the new forms expressly state that medical providers may, but are “not required” to provide other appropriate medical facts related to the condition for which the employee seeks leave. Previous forms merely invited medical providers to do so. In fact, the new forms offer only a few lines for medical providers to include such details.

The DOL believes these changes will reduce the time users spend providing information, improve communications between leave applicants and administrators and reduce the likelihood of FMLA violations.

The following new forms can be found on the DOL’s website:

• 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 for Military Family Leave for a Qualifying Exigency
• WH-385 -- Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave
• WH-385V -- Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The DOL’s Q&A section reiterates that the FMLA does not require the use of any specific form or format. Employers therefore have the option to create their own version of the forms containing the same basic information, use the previous version of the forms, or even modify the new forms. However, the DOL makes clear that employers requesting a medical certification may only request information that relates to the serious health condition for which the current need for leave exists, and no information may be required beyond that which is specified in the regulations.

DOL Request for Information

The DOL has expressed its awareness that the FMLA regulations need to be reviewed regularly to ensure such regulations remain current with workplace changes. Accordingly, the DOL in its RFI specifically asks employers and employees to list the changes they would like to see in the regulations to effectuate better their rights and obligations under the FMLA.

The DOL invites members of the public to submit comments on the following list of specific topics, but makes clear that information on FMLA-related topics not listed below is also welcome:

• Challenges faced by employers/employees in applying the regulatory definition of “serious health condition” and situations in which employers/employees believe the definition of “serious health condition” was over-or under-inclusive.
• Challenges or impacts faced by employers/employees when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule.
• Challenges experienced by employers/employees when employees request leave or notify their employers of their need for leave.
• Challenges related to the medical certification process that are not addressed in the revised forms.
• Whether it would be helpful to provide additional guidance regarding the interpretations contained in any recent DOL opinion letters through the regulatory process.
• Any specific information and any available data regarding other specific challenges that employers experience in administering FMLA leave or that employees experience in taking or attempting to take FMLA leave.

The DOL is accepting comments until Sept. 15, 2020. Employers should take advantage of the opportunity to provide feedback to the DOL, especially regarding those aspects of the existing regulations that employers find confusing or would like to see changed in the future.

Since the beginning of the COVID-19 global pandemic, New York and the federal government have made adjustments to leave regulations to accommodate individuals and families affected by the virus, including expanded FMLA leave under the Federal Families First Coronavirus Response Act. For more information about these changes, read our prior legal alert.