October 27, 2020

Volume X, Number 301


October 27, 2020

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October 26, 2020

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New FMLA Model Notices and Forms Issued by the U.S. DOL Reflect Significant Changes

The U.S. Department of Labor (DOL) recently issued new model notices and certification forms (FMLA forms), which can be used by employers to administer the federal Family and Medical Leave Act (FMLA) and fulfill the FMLA notice obligations. These forms are not mandatory and employers may choose to use their own forms or prior versions of these forms. The DOL has stated that the forms were revised to be clearer and more user-friendly for employers, leave administrators, health care providers, and employees. The new forms feature a number of “check boxes” rather than requiring written responses. Additionally, certain topics are now more detailed, including employee eligibility and rights and responsibilities, leave designations, and medical information. The key revisions to the new forms are summarized below and the new model FMLA forms are available here: https://www.dol.gov/agencies/whd/fmla/forms

Key Revisions to the New Forms

  • Notice of Eligibility & Rights and Responsibilities (Form WH-381) – Contains three separate sections: 1) “Notice of Eligibility,” 2) “Additional Information Needed,” and 3) “Notice of Rights and Responsibilities.” The “Notice of Eligibility” section now includes a description of the eligibility rules and definitions of key terms, such as “spouse,” “child” and “parent.” The “Additional Information Needed” section now details the categories of information that the employer is requesting in order to determine whether the employee’s absence qualifies for FMLA leave. The “Notice of Rights and Responsibilities” section includes six subparts that significantly detail the employee’s rights and responsibilities under the FMLA, including the employee’s FMLA leave entitlement, substitution of paid leave, maintenance of health benefits, other employee benefits, return-to-work requirements, and other requirements while on FMLA leave. 

  • Designation Notice (Form WH-382) – Contains three separate sections: 1) “Employer,” 2) “Additional Information Needed,” and 3) “FMLA Leave Approved.” The “Employer” section now provides “check the box” options for the employer to select the qualifying reason for which the employee is requesting FMLA leave as well as options for indicating whether the employee’s FMLA request has been approved or denied or whether additional information is needed. Under the “Additional Information Needed” section, the form now includes a section concerning “Incomplete or Insufficient” medical certifications and space is provided for the employer to explain exactly what information is still needed from the employee and when such information is due. Under the section titled “FMLA Leave Approved,” the form details the employee’s leave entitlement, including information regarding substitution of paid leave, as well as the relevant return-to-work requirements.

  • Medical Certifications (Forms WH-380-E and WH-380-F) – Contains some of the most notable revisions. Specifically, the new forms now request more detailed information from the employee or family member’s health care provider, including the specific serious health condition (e.g., inpatient care, pregnancy, chronic condition, permanent or long-term condition, etc.) and a “best estimate” of the type and amount of leave needed (e.g., reduced schedule, incapacitated for continuous period, planned medical treatment on specified dates, etc.).

In addition, the certification forms now explicitly instruct health care providers not to provide information restricted by the Genetic Information Nondiscrimination Act (GINA). Also, the new forms do not contain questions requesting extended narrative responses from health care providers but instead, expressly state that this information is not required and that certain information (e.g., diagnosis) may be restricted by state or local law. This language is particularly relevant in states that have their own FMLA laws that differ from the federal FMLA; for example, under Connecticut’s state FMLA law, health care providers cannot be required to provide a diagnosis. 

The DOL has also revised its certification forms for employees requesting military family leave for a qualifying exigency or to provide care for an ill or injured current service member or veteran. For example, the qualifying exigency certification form now includes “check the box” options for the type of leave (e.g., rest and recuperation, post-deployment activities, etc.), the amount of leave, and the schedule of leave. Moreover, the certification forms for caregiver leave of a current service member or veteran now include “check the box” options for the type of care being provided (e.g., psychological comfort, physical care, etc.), the seriousness of the relevant injury or illness, and the amount of leave needed (e.g., reduced schedule basis, intermittent basis, etc.).

Overall, although their use is optional, these FMLA forms appear to be easier to use and may be helpful to employers in administering FMLA leaves of absence. However, there are still opportunities for the DOL to better support the FMLA administration process with additional revisions, such as noting whether a certification is an initial, annual, or re-certification form or is being used as part of a second or third opinion. The forms remain silent in terms of advising employees and health care providers to provide truthful and accurate information. Further, these new forms only pertain to federal FMLA and do not address state-specific leave laws that may also apply. Employers may wish to create adapted versions of the DOL’s FMLA forms to address these issues.

Employers may wish to consider whether switching to the new forms would add value to the administration of their FMLA leave programs and whether they will need to modify the new forms to incorporate applicable state-law provisions. Those employers already using modified forms to comply with the administration of state FMLA laws may wish to revise their existing forms to include the new format and details for the federal FMLA. 

Copyright © 2020 Robinson & Cole LLP. All rights reserved.National Law Review, Volume X, Number 262



About this Author

Stephen W. Aronson Employment Lawyer Robinson Cole Law Firm

Stephen Aronson defends employers in federal and state court and before administrative agencies in class actions, multiplaintiff, and single plaintiff employment law claims.

Employment Litigation and Administrative Advocacy

Stephen has extensive experience leading the defense of companies facing Fair Labor Standards Act (FLSA) misclassification claims, including hybrid claims under federal and state law. He frequently wins summary judgment on discrimination, retaliation, whistleblower, free speech, and other employment claims. He is hired by employers and...

Britt-Marie Cole-Johnson Labor & Employment Attorney

Britt-Marie Cole-Johnson is a member of the firm's Labor, Employment, Benefits + Immigration Group. She focuses her practice on counseling private sector employers, ranging from NYSE and NASDAQ companies, multi-national corporations, nonprofit health care organizations, and educational institutions to manufacturers, in all areas of employment law. She handles sensitive, high-risk personnel issues and investigations as well as compliance and training.

Board Advisory Services

In today’s marketplace, boards are faced with constant change and a complex governance landscape. Between the rise in public scrutiny, an increased focus on risk management, and the significant role that directors have in the talent management strategy, organizations are expected to have insightful, forward-thinking, and effective boards. As a former board chair of a multi-million dollar organization and a counselor to the boards of significantly larger organizations, Britt-Marie is well-versed in the key collective and individual responsibilities of directors and the critical need for boards to seek governance, risk, and strategy guidance. When there is an employment-related or board member-related opportunity, challenge, or crisis (or some combination thereof), she is called upon to provide sound, strategic counsel. She regularly counsels board chairs, chief executive officers and other C-Suite executives, and nominating, governance, and audit committees, on a variety of matters, including C-Suite and director transitions, the executive search and selection process, workplace investigations, and board and committee training.

Employment Counseling, Compliance, and Training

Britt-Marie counsels companies and human resource professionals in all areas of employment law, including discharge and discrimination issues, workplace investigations, personnel policies and handbooks, affirmative action compliance, employee discipline, wage and hour issues, disability and reasonable accommodation, family and medical leave, unemployment, employment and independent contractor agreements, severance and separation agreements, individual terminations and reductions in force, and workplace health and safety issues.

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Britt-Marie is a trained workplace investigator and regularly conducts, manages, and provides advice regarding workplace investigations involving all types of employment-related issues, particularly those requiring Board of Director and senior management involvement and high-profile matters. She serves as a faculty member for the Association of Workplace Investigators and frequently gives presentations on workplace investigations for Society of Human Resource Management chapters, the Association of Workplace Investigators, and other professional groups, as well as firm clients.

Jean Tomasco, Robinson Cole Law Firm, Hartford, Labor and Employment, Litigation Law Attorney

Jean Tomasco's practice involves employer counseling and employment litigation, with an emphasis on the Employee Retirement Income Security Act (ERISA) and benefits litigation. She is a member of the firm’s Health + Benefits Litigation Team and its Labor, Employment, Benefits + Immigration Group.

Employee Benefits and Compensation Litigation

Jean has more than two decades of experience handling benefit claims litigation. She represents insurers, managed care organizations, and employers in benefit...

Abby Warren Labor and Employment Attorney

Abby Warren is a member of the firm's Labor, Employment, Benefits + Immigration Group, where she represents employers in labor and employment matters. She focuses her practice on counseling private sector employers, including multinational corporations, health care organizations, educational institutions, and manufacturers, in all areas of employment law. Abby also defends employers in federal and state court and before administrative agencies. In addition to counseling and litigation, she provides workplace training for clients and conducts workplace investigations.