Employers should closely review the newly revised model notice and certification forms under the FMLA and consider using them instead of existing, older forms.
In the midst of employers’ focus on the COVID-19 pandemic and its impact on operations, employers should be aware of recent, more general developments regarding the Family and Medical Leave Act (FMLA). Specifically, the U.S. Department of Labor (DOL) has released revised versions of its model optional FMLA notice and certification forms and has published a request for information seeking public input on what employers and employees would like changed or clarified regarding the regulations implementing the FMLA.
Revised Notice and Certification Forms
On July 16, 2020, the DOL issued revised versions of its model FMLA notice and certification forms.
In its newly posted Q&A relating to the revised FMLA forms, the DOL confirmed employers are not required to use any specific form or format for collecting information relating to a requested leave. Rather, the optional forms were revised “to make them easier to understand for employers, leave administrators, healthcare providers and employees seeking leave.” The forms now have text-fillable lines and response boxes and can be completed electronically; contain deadline information for submitting the form and required certifications; have specific questions based on the type of leave requested; and include definitions of FMLA-covered conditions and situations. Although the forms are available for immediate use, the DOL cautioned that employers may not require employees to resubmit previously provided FMLA information using the revised forms.
Notably, while the DOL revised the notice and certification forms, it did not revise the mandatory FMLA notice poster. In addition, the revised forms do not apply to leave provided under the Families First Coronavirus Response Act (FFCRA). Instead, the FFCRA documentation requirements are set forth under the FFCRA regulations, which we discussed in our April 3, 2020, Alert.
Request for Information
The DOL also published a request for information (RFI) asking employers and employees for comments on what each would like to see changed in the regulations to better effectuate the rights and obligations under the FMLA. In publishing the RFI, the DOL acknowledges that it is aware that it needs to engage in ongoing efforts to examine the effectiveness of the current FMLA regulations and consider areas where additional compliance assistance could be helpful.
The DOL is requesting comments addressing several topics, which it notes are not intended to be an exhaustive list. Among the topics identified by the DOL:
- What are the challenges employers and employees experience in applying the regulatory definition of a serious health condition?
- What are the challenges employers and employees experience when an employee takes FMLA leave on an intermittent basis, especially when the request for leave is unforeseeable?
- What are the challenges employers and employees experience when employees request leave or notify their employers of the need for leave, including when insufficient information is provided by the employee?
- What are the challenges employers and employees experience in determining whether a certification establishes a serious health condition or in obtaining sufficient information?
In addition, the DOL asks whether additional guidance is needed regarding the interpretations contained in seven DOL opinion letters issued since 2018. The opinion letters concern numerous topics including:
- Whether an employer may voluntarily delay the designation of FMLA leave and the interplay with paid leave under a collective bargaining agreement;
- The compensability of frequent 15-minute rest breaks necessary because of a serious health condition;
- An employer’s no-fault attendance policy;
- The circumstances when organ donation may qualify as a serious health condition;
- Taking intermittent leave to attend an Individualized Education Plan meeting addressing the educational and medical needs of a child who has a serious health condition;
- Whether a health district and a county are the same or single public agency employer for purposes of determining FMLA eligibility; and
- Whether an employer’s more generous leave policies expand an employee’s FMLA entitlement.
The DOL will accept comments from the public until September 15, 2020.
What This Means for Employers
Employers should closely review the newly revised model notice and certification forms under the FMLA and consider using them instead of existing, older forms. Use of the new forms is optional, but employers should find these forms to be more user-friendly. Employers should keep in mind that the revised forms do not apply to leave under the FFCRA, and they must continue to comply with the separate documentation requirements of the FFCRA.
Employers wishing to provide public comment regarding revisions to the FMLA regulations should do so on or before September 15, 2020.
For More Information
If you have any questions about this Alert, please contact Linda B. Hollinshead, Maria Cáceres-Boneau, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.