Guest blog by The Human Resource Consortium, LLC
The Department of Labor issued new prototype FMLA Notices and Certification Forms on July 16, 2020 after receiving “substantial public input.” Some of the forms were entirely reorganized and revamped, while others received less significant revisions. The DOL revised the introductory statements and instructions on the notices and forms to make them more aligned with the regulations and more consistent with each other, and added certain explanatory information (e.g., definitions of family members). Below is a summary of the more salient changes to each notice and certification form.
Changes to WH-381
The changes to the model Notice of Eligibility and Rights & Responsibilities are extensive. A new section heading has been added following the Notice of Eligibility section for Additional Information Needed (i.e., a certification or other documentation). After those sections, the previous version of the Notice was organized by a list of employee “responsibilities” followed by a list of employee “rights,” which required an employee to refer to both sections to gather all the information on the same topic (such as substitution of paid leave rules and the maintenance of health insurance benefits). The new model notice is reorganized into seven topics related to an employee’s FMLA leave and return to work each with its own heading, lending greater clarity to the information provided on each topic.
The DOL also incorporated additional information for an employer to provide to employees in the Notice regarding FMLA leave, making the Notice more aligned with the regulations, including:
- requiring an employer to indicate how far short of the 1,250 hours of service requirement if an employee does not meet that eligibility criterion;
- the option for an employer to indicate the effect that FMLA leave has on employee benefits other than health insurance (g., life and disability insurance, and pension or retirement benefits); and
- whether FMLA leave will run concurrently with workers’ compensation, any applicable disability insurance coverage or leave provided pursuant to State law (although information regarding whether an employee may supplement workers’ compensation or disability insurance payments is not referenced).
The new form also does not reference the effect that any unpaid portions of FMLA leave will have on the accrual of seniority and paid leave benefits, if any. Overall, however, the new Notice is a vast improvement over the prior version of the Notice that had been in place since 2013, with greater specificity, making it easier for both employers and employees to understand and use.
Changes to WH-382
The redesigned model Designation Notice form replaces the version of the form that had been in place since 2009. Most of the revisions involve how the form is organized and the increased level of specificity provided on a covered topic (such as whether additional information is needed and whether available paid leave will run concurrently with FMLA leave). The only significant information added to the Notice relates to (a) the reason for an employee’s FMLA leave request, (b) a cautionary statement that an employee’s failure to provide any additional information requested may result in the denial of FMLA leave, and (c) whether FMLA leave will run concurrently with workers’ compensation, any applicable disability insurance coverage or leave provided pursuant to state law.
Changes to WH-380-E and WH-380-F
The changes to the two medical certification forms for FMLA leave due to a serious health condition are extensive—both in terms of their configuration and in terms of the information that is solicited from health care providers. Most significantly, the new medical certification forms shift the responsibility for determining whether an employee or covered family member has a serious health condition from the employer to the health care provider: previous versions that were in place had asked the health care provider a series of questions and the employer was required to rely on the affirmative or negative responses to decide whether the medical facts met the
definition of a “serious health condition.” The revised forms call upon the health care provider to decide whether the medical facts establish the existence of one (or more) of the six serious health conditions and, if so, to select which one(s). The new forms also add options for the health care provider to indicate both past and future (a) medical treatment, (b) medically necessary leave, and (c) period of incapacity (from work or regular daily activities). The previous versions of the forms asked the health care provider solely about either past or in the future treatment. That change adds a great deal of clarity for employers regarding an employee’s need for leave.
With respect to the amount of leave needed, the new forms ask the health care provider to indicate whether “planned medical treatments” were or will be scheduled. That information is important in light of the regulatory requirement that an employee attempt to schedule such treatments so as not to unduly disrupt an employer’s operations. The new forms separate some compound questions that were in the previous versions into more specific individual components. For example, if the patient was or will be referred to other health care provider(s) for evaluation or treatment, the new forms distinctly request (a) the nature of the treatments, (b) the beginning and end dates for such treatments, and (c) the likely duration of such treatments. In addition, the revised form related to an employee’s own serious health condition requests the health care provider to delineate whether leave is needed in one continuous block due to incapacity or is medically necessary on a reduced schedule or intermittent basis, as well as the beginning and ending dates for each manner of leave needed, adding more specificity to those estimated schedules.
WH-380-F related to a covered family member’s serious health condition also requests specific information about the amount of FMLA leave needed for a continuous block of time or intermittently, but appropriately asks the employee—rather than the health care provider as in the previous rendering of the form—to provide information about leave needed on a reduced schedule basis to care for the family member. The previous version of the certification form also was vague regarding the reduced leave schedule that was needed. The new version of the form requires an employee to indicate whether he or she is seeking leave to care for a child under the age of 18 or for an adult child (i.e., age 18 or older and incapable of self-care because of a mental or physical disability). The new family member certification form also adds checkbox options for an employee to indicate the type of care being provided to the family member (e.g.,
(a) assistance with basic medical, hygienic, nutritional, or safety needs, (b) transportation, (c) physical care, and/or (d) psychological comfort). The form also asks the health care provider to identify the type of care the family member needs. However, if the employee needs leave to care for an adult child (i.e., a child 18 years of age or older), the health care provider is not asked to indicate whether an adult child is “incapable of self-care because of a mental or physical disability.” The absence of that question is appropriate because a “disability” is a legal definition under the ADA, not a medical one, and whether an individual is unable to engage in self-care is a factual determination.
The new forms are more streamlined for the responding health care provider – he or she is not asked to answer “No” or “Yes” to every question, but rather must simply check a box if the information requested is applicable, which should reduce the amount of time required to complete the form. The revised versions of the two medical certification forms are better organized, more aligned with the regulatory terminology and standards, and more straightforward for employers, employees and health care providers to understand.
Changes to WH-384
The changes to the certification form related to FMLA leave for a qualifying exigency are not extensive. Two of the section headings were retitled, a new heading was added for Covered Active Duty Status, but the information and documentation requested from an employee seeking leave is essentially the same. A list of the qualifying exigency categories was added with checkboxes for the employee to indicate the category for which leave is being sought. In addition, the form requests more specific information about the leave schedule requested (i.e., in a continuous block of time or on an intermittent or reduced scheduled basis) and provides the option for an employee to indicate that the qualifying exigency involves the military member’s Rest and Recuperation (in light of the fact that such leave is limited to 15 calendar days for each instance of R & R leave).
Changes to WH-385 and WH-385-V
The revisions to the two certification forms related to the serious injury or illness of a covered service member are not extensive. As with the new forms related to a serious health condition, both forms add checkbox options for an employee to indicate the type of care being provided to the family member (e.g., (a) assistance with basic medical, hygienic, nutritional, or safety needs, (b) transportation,
(c) physical care, and/or (d) psychological comfort). The form also asks the health care provider to identify the type of care the family member needs. The forms request more specific information from the employee about the amount of leave needed and whether such leave is needed on a reduced schedule basis, and from the health care provider about whether leave is needed on an intermittent basis.
In sum, the Department of Labor clearly carefully considered the input from the 139 public comment submissions and made vast improvements to the notices and certification forms. They are available on the DOL’s webpages.