September 16, 2019

September 16, 2019

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Do The DOL’s FMLA Forms Work For You? Now is Your Chance to Speak Up

On August 5, 2019, the Department of Labor (“DOL”) published proposed revisions to the Wage and Hour Division’s Family and Medical Leave Act (“FMLA”) forms with the stated goal “to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use.”

Many revisions are stylistic or organizational. The proposed forms have color-coded sections specific to the employee, the employer and health care provider, and include additional headings and numbering to simplify the forms. For example, the proposed Designation Notice (WH-382) first addresses whether the employee’s request is approved or denied, and then directs the employee to either Section II (“Additional Information Needed”) or Section III (“FMLA Leave Approved”). The current Designation Notice is a single page with multiple sections separated only by bold lines.

Some revisions give additional cues to both employees and employers about the legal nuances of the FMLA. The proposed Notice of Eligibility and Rights & Responsibilities (WH-381) includes a section dedicated to substitution of paid leave. It advises employees that the FMLA allows the employer to require the employee to use available paid leave during the employee’s FMLA absence. The proposed form expressly lists several types of concurrent leave that might be in play, such as short- or long-term disability, workers’ compensation, or state-required leave. The proposed Designation Notice (WH-382) explains the difference between an “incomplete” certification and an “insufficient” certification. The proposed certifications for leave involving a third party (WH-380F, WH-384, WH-385, WH385-V) replace the open-ended request for a description of the reason for the leave with more specific examples for the employee to select (i.e., the Certification of Health Care Provider for Serious Health Condition of the Family Member identifies transportation, physical care, psychological comfort, assistance with basic medical, hygienic, nutritional or safety needs, and other).

New formatting is intended to eliminate the current duplicative questions, and streamline the process for health care providers. The current medical certification forms (WH-380-E and WH-380-F) include a series of “yes” or “no” questions (e.g., “Will the patient need to have treatment visits at least twice per year due to the condition,” “Is the medical condition pregnancy?”). By contrast, the proposed forms WH-380-E and F request that the health care provider check at least one of six boxes (“Inpatient Care,” “Incapacity Plus Treatment,” “Pregnancy,” “Chronic Conditions,” “Permanent or Long Term Conditions,” and “Conditions Requiring Multiple Treatments”), and only provide medical information related to the selected categories. Thus, the health care provider would confirm only once that the employee or family member has a serious health condition.

The proposed forms also provide additional instruction and definitions. For example, the terms “next of kin” and “in loco parentis” are defined in the forms. The forms define “serious health condition” for health care providers, and include examples of certain conditions that might meet the definition (i.e., Alzheimer’s disease is a permanent or long-term condition, while diabetes or migraine headaches may qualify as chronic conditions).

The proposed revised forms are:

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 of Qualifying Exigency for Military Family Leave

WH-385 Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave

WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The DOL is accepting public comments until October 4, 2019. 

Jackson Lewis P.C. © 2019

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About this Author

Catherine A. Cano, Jackson Lewis, Federal Disability Lawyer, Retaliation Matters Attorney
Associate

Catherine A. Cano is an Associate in the Omaha, Nebraska, office of Jackson Lewis P.C. She represents management in all areas of labor and employment law. 

Ms. Cano helps clients navigate state, federal, and local leave and disability laws. Ms. Cano has experience in litigation and arbitration in several areas, including employment discrimination, retaliation and whistleblower claims, and non-competes and unfair competition. Ms. Cano’s practice also includes assisting clients involved in union organization campaigns, collective bargaining,...

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