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Legal Updates

Department Of Labor Issues New FMLA Forms

This past July, the U.S. Department of Labor (“DOL”), following input from employers, law firms, industry associations, employees, worker advocacy groups and interested members of the public, issued new Family and Medical Leave Act (“FMLA”) forms.  

In a press release, the DOL described the new forms as “simpler and easier to understand for employers, leave administrators, healthcare providers and employees seeking leave.”  The DOL also stated that the changes “reduce the amount of time it takes for a healthcare provider to provide information, and help leave administrators review and communicate information to employees more directly and with greater clarity, reducing the likelihood of violations.”

As with the prior forms available from the DOL, the new FMLA forms are optional.  Many employers, however, use the DOL-provided forms to assist them in complying with the statute.

Brief Summary Of The FMLA

Under the FMLA, eligible employees may take up to 12 weeks of unpaid leave annually for specified purposes, including an employee’s or a close family member’s “serious health condition,” as well as childbirth, adoption, or foster care placement.  Additionally, eligible employees may take up to either 12 or 26 weeks of unpaid leave annually for specified reasons relating to an employee’s or a close family member’s military service.  

To be eligible for FMLA leave, an employee must have worked for his or her employer for at least 12 months, and must have worked at least 1,250 hours over the 12 months preceding the leave request.  In addition, the employee must work at a location where the employer has 50 or more employees within a 75-mile radius.

At the conclusion of FMLA leave, an employee is entitled to be returned to his or her position (or a substantially equivalent one), unless the position is no longer available for reasons unrelated to the leave (e.g., a reduction-in-force implemented for economic reasons).

The DOL has long provided model forms for employers to use in administering FMLA leave requests, which the agency has now modified. 

Changes In The New Forms

The new FMLA forms do not make any substantive changes to the information collected.  However, the new forms require more specific information with respect to eligibility notices and medical certifications.  

The new forms also “include more questions that users can answer by checking a response box and electronic signature features to reduce contact.”  One prominent change is that the new forms provide a blank for a specific date by which the forms must be completed and returned by the employee.  

In addition, the updated FMLA forms incorporate the following changes:

Eligibility Notice – This form includes a description of eligibility rules and definitions, which have been reorganized into seven topics related to an employee’s FMLA leave and return to work, each with its own heading.  The updated form also includes space for the employer to indicate how far short of the annual 1,250-hour service requirement an employee is, if the employee does not meet that eligibility requirement. 

Rights And Responsibilities Notice – This notice sets forth the requirements and expectations for an employee taking FMLA leave.  It now includes expanded definitions regarding the substitution of paid leave, and space for indicating whether FMLA leave will run concurrently with workers’ compensation, any applicable disability insurance, or leave required by state law.

Designation Notice – This notice indicates that an FMLA leave request has been approved or denied, or that additional information is required to determine leave status.  Space has now been provided for the employer to specify exactly what information is still needed and when it is due.  This should help employers obtain the information they need to make a designation decision.

Certification Of Healthcare Provider – This form asks the health care provider to explain the employee’s qualifying “serious health condition.”  The revised certification form:

o Asks the health care provider to identify more clearly the type of medical condition at issue and the type and amount of leave needed;  

o Requests that the health care provider give a “best estimate” of the employee’s future treatment; and

o Alerts the health care provider that describing the duration of an employee’s incapacity as “lifetime,” “unknown,” or “indeterminate” may not be enough for the employer to determine FMLA coverage.

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If you have questions regarding the DOL’s new FMLA forms, or any other issues under the statute, please feel free to contact one of our experienced employment lawyers.