On July 17, 2020, the DOL issued new model notices and forms to be used by employers in the administration of the Family and Medical Leave Act (FMLA). The new optional forms are simpler and easier to understand for employers, leave administrators, healthcare providers and employees seeking leave. The DOL made revisions after substantial input from the public. Significant updates include fewer questions that require written responses, replaced by statements that can be completed by checking a box, and in support of minimized contact, electronic signature features. The changes reduce the amount of time it takes a healthcare provider to provide information and helps leave administrators review and communicate information to employees more directly and with greater clarity, reducing the likelihood of violations. Some of the noteworthy changes are as follows:
Notice of eligibility
- The notice includes separate sections to outline employee rights and responsibilities in a clearer manner.
- The notice includes a host of check boxes to specify precisely which family member an employee will care for.
- The notice provides a much clearer explanation of how employer-provided, accrued paid leave runs concurrently with FMLA.
Designation Notice
- The notice makes clear that employers are obligated to designate FMLA leave whenever leave is covered by FMLA, even if the employee and/or employer do not want FMLA to apply.
- The notice offers a clearer explanation of how paid leave will run concurrently with FMLA.
- The notice outlines the steps that an employee should take to remedy an incomplete or insufficient certification, including requiring employers to specifically explain what is missing and/or insufficient.
Medical Certification
- The certification form makes clear that an employer cannot request certification for FMLA leave to bond with a healthy newborn child or a child placed for adoption or foster care.
- The form requires a “best estimate” of the employee’s or family member’s future treatment.
- The form now includes a box for the health care provider to confirm there is NO serious health condition, which will require healthcare providers to give more thought to the situation.
Along with its new notice and forms, the DOL also published a “Request for Information” (RFI) asking employers and employees for their feedback on potential changes to the FMLA regulations. The RFI solicits feedback on any specific challenges or best practices in the use or administration of FMLA leave. Information from the public about what is and is not working well in the administration of the FMLA will help the DOL identify topics about which additional compliance assistance would be helpful, including opportunities for outreach to ensure employers are aware of their obligations under the law and employees understand their rights and responsibilities in using FMLA leave.
Next Steps
Employers that are subject to FMLA should review and download the updated notice and forms and are encouraged to have their voices heard by submitting comments to the RFI. The RFI has been published in the Federal Register as of July 17, 2020 and will remain open for a 60-day comment period, allowing comments to be submitted until September 15, 2020.
To comment, employers should visit www.regulations.gov and select “The Federal Family and Medical Leave Act of 1993” and click on the “Comment Now” button.
