DOL Publishes New FMLA Forms

(This post was written by attorney Kai McGintee, Bernstein Shur on 6/10/15)McGintee

With summer right around the corner, the federal Department of Labor hasn’t taken off on vacation quite yet. Rather, the DOL has been hard at work issuing new Family and Medical Leave Act notices and medical certification forms for employers to use. The new DOL forms are good through May 31, 2018:WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition. (Click for Forms)

WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
WH-381 Notice of Eligibility and 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 Current Servicemember — for Military Family Leave
WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The forms are substantially similar to the DOL’s prior versions. The only notable change is that the DOL added a reference to the Genetic Information Nondiscrimination Act in its instructions to health care providers on the certification form for an employee’s serious health condition (WH-380-E). Specifically, the DOL added the following: “Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).” Employers who use their own medical certification forms rather than the DOL version should be sure to add this instruction for GINA compliance purposes.
Although the DOL had at one time created a form for employees to use to request FMLA leave, that form is a thing of the past. Because no magic words, let alone a form, are needed to request FMLA leave, the DOL did away with its model request for leave form. Employers should remember that for foreseeable leave, an employee only needs to provide “verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.” For unforeseeable leave, an employee only needs to provide “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.”
Once an employee requests leave, the employer’s responsibilities under the FMLA are triggered if it has “knowledge that an employee’s leave may be for an FMLA-qualifying reason.” As a result, when any doubt exists over whether an employee is seeking time off for a reason that could qualify under the FMLA, employers should err on the side of caution. If an employee mentions illness or injury as the reason for an absence, then the absence “may” be FMLA-qualifying and the Notice of Eligibility and Rights & Responsibilities should be provided to the employee. Although Maine has its own version of FMLA, the state has not developed its own forms. Accordingly, Maine employers who wish to utilize the federal forms for Maine FMLA purposes should specifically advise the employee that the federal form is being used for that purpose, and that mere usage does not confer federal FMLA rights. New Hampshire does not have a separate state family medical leave law and therefore follows the federal FMLA.
The DOL FMLA forms are simple, fairly straightforward, and legally compliant. As long as employers use them consistently and correctly, administration of FMLA will be a warm summer breeze!

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