The Department of Labor recently published new model notices and forms for employers to use when administering leave under the Family and Medical Leave Act (FMLA). While the changes to these documents aren’t groundbreaking, there are a few things worth noting for your reference.
The Eligibility Notice (form WH-381) is used to inform employees of their eligibility for FMLA leave, or provide at least one reason as to why the employee is not eligible for such leave. The changes to the document are minor but do provide some clarity on several points. There are separate boxes for an employee to check to specify what family member they are caring for, along with clearer sections that outline employee rights and responsibilities and how accrued, paid-leave provided by an employer (vacation/PTO) runs concurrently with the FMLA.
However, the notice still does not address the issue regarding the due date for medical certification. When an employee requests FMLA leave, there may be reason for an employer to request medical certification of the need for such leave. In such case, the FMLA states that the employer can deny unforeseeable leave if an employee fails to provide certification “within 15 calendar days from receipt of the request…”
However, the notice itself states that the medical certification must be returned within “at least 15 calendar days from the date the employer requested the employee to provide certification…” This was an issue in the older version of the model notice, as well, so employers are likely already familiar with this particular bit of confusion. The time-clock does not start until the employee receives the certification request.
If you mail it out to an employee Monday but they don’t receive it until Thursday, they have 15 days to return it starting that Thursday, not the day you sent it. For employers who use email for FMLA requests, this is a non-issue but for those still using paper mail, counting these days matters.
The Designation Notice (form WH-382) is used to inform employees whether their FMLA leave request has been approved or not. It also informs employees of the amount of leave that has been given to them and counted against their FMLA allotment. Employers can also used the form to inform employees that their certification is incomplete or otherwise insufficient and that more information is needed to complete the request.
Back in 2019, the DOL issued opinion letters stating that neither party, employer or employee, has the authority to decline FMLA protection for leave. In an effort to make that point clear, the DOL reiterates it on the Designation Notice form:
“The employer is responsible in all circumstances for designation leave as FMLA-qualifying and giving notice to an employee. Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such
leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave.”
The new form also provides the employee with steps to take in order to fix an incomplete or insufficient certification. But in order to make that feasible, the employer is required to specifically explain how the certification is incomplete or insufficient.
The DOL provides us with two separate medical certification forms – one for when its regarding an employee’s own serious health condition, and one for a family member’s serious health condition. There are also certification forms for those employees who are taking military family leave under the FMLA.
Unlike previous iterations of the form, these new model certification forms specifically state that employees “may not request a certification for FMLA leave to bond with a healthy newborn child or a child placed for adoption or foster care.” This is often an area where employers and HR personnel get tripped up on, so its inclusion in the new form will be helpful for those taking in these forms in the future.
DOL Request for Info
The DOL also recently just issued a public request for information. The Department is seeking to “gather information concerning the effectiveness of the current regulations and to aid the Department in its administration of the FMLA.”
But rather than being a general request, the DOL has specific questions that it’s asking employers and employees to address. For example, the DOL wants to know what employees and employers would like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA. Further:
- What challenges have employers and employees experienced in applying the regulatory definition of “serious health condition”?
- What conditions have employers encountered that meet the regulatory definition of “serious health condition” but they believe the statute does not cover?
- What, if any, difficulties have employers experienced in determining when an employee has a chronic condition that qualifies as a serious health condition under the regulations?
- What challenges do employers and employees experience when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule?
- What, if any, specific challenges do employers and employees experience when employees request leave or notify their employers of their need for leave?
- Are employees aware of and able to comply with their employers’ specific procedural requirements for providing such notice? Are they aware of the specific information they need to provide?
Should you have any questions about the new model forms from the DOL, FMLA regulations, or any other laws that may affect your business, or would like to schedule an initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.
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