23 JULY, 2020
What’s new in the DOL’s updated FMLA forms?
The DOL described the forms as “easier to understand for employers, leave administrators, healthcare providers, and employees.”
As the great philosopher Ferris Bueller once said, life moves pretty fast. Therefore, it’s entirely possible you might have missed the July 16 release of the U.S. Department of Labor’s new FMLA forms.
Plans to update the forms were initially announced last August, but those drafts were revised further after public comments were received. The new forms address issues surrounding the certification required from an employee’s health care provider, as well as the designation and eligibility of leave.
In a press release, the DOL described the forms as “simpler and easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave.” The DOL also claims that their changes “reduce the amount of time it takes 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.”
The new forms can be used by employers to comply with their obligations under the FMLA, but they are not required to use those forms.
What’s new in the forms? Catherine Cano of Jackson Lewis PC says the new medical certification forms may reduce the amount of information medical providers offer about serious medical conditions. Previous certification forms dedicated several blank lines for providers to describe “symptoms, diagnosis, or any regimen of continuing treatment” related to the condition. The new forms now state that this information is not “required,” says Cano, and offers only a couple lines for providers to write details. They also note that certain information, like diagnoses, may be restricted by state or local law.
Cano questions how the potential lack of medical information will impact the administration of leave, “particularly in cases involving intermittent leave or multiple serious health conditions.”
Cano’s not the only one with questions about the new forms. In a piece written for FMLA Insights, Jeff Nowak of Littler writes, “Every new notice and form requests that the employee’s name be written at the top of each page. What are we, second graders? Come on, dumb idea.”
Nowak also points out that although the notice of eligibility “provides a much clearer explanation of how employer-provided, accrued paid leave runs concurrently with FMLA,” it still leaves a misleading part intact: “that the 15-day period to return certification runs from the time the employer provides the medical certification, which is not true. The employee has 15 days from the time they receive the certification, not from the time the employer actually sends it out.
“This could have been an easy fix, but DOL swung and missed on this one,” Nowak laments.
Nowak does give a thumbs-up to parts of the medical certification, particularly the requirement for a “best estimate” of the employee’s or family member’s future treatment. He also notes that the new certification “makes clear that an employer dare not request certification for FMLA leave to bond with a healthy newborn child or a child placed for adoption or foster care. Yeah, this is a no brainer, but plenty of employers still get this wrong, and clearly, DOL thinks so, too.”
As in the past, the DOL has also issued a Request for Information, asking for feedback from the public on what they would “like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA.” The deadline for comments closes on September 15.
Published JULY 23, 2020