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With a Nod to Challenges Posed by COVID-19, DOL Publishes New FMLA Forms and Request for Information With a Nod to Challenges Posed by COVID-19, DOL Publishes New FMLA Forms and Request for Information

With a Nod to Challenges Posed by COVID-19, DOL Publishes New FMLA Forms and Request for Information

The U.S. Department of Labor’s Wage and Hour Division has released newly revised optional-use Family Medical Leave Act (FMLA) forms, including a new eligibility notice, designation notice, certification of military family leave, and certifications of health care providers for a serious health condition. The forms are intended to be user-friendly and reduce the need for contact. The agency also published a Request for Information (RFI) in the Federal Register seeking public comment on the regulations implementing the FMLA and specifically seeking input from employees and employers as to what they would like to see changed in the FMLA regulations. The RFI does not seek comment on the amended FMLA protections provided under the Families First Coronavirus Response Act (FFCRA), but it recognizes COVID-19 as an ongoing priority for the DOL and that workplace flexibility ensured by job-protected leave is essential.

Newly-Revised FMLA Forms

In revising the FMLA forms, the DOL intended to make them simpler and easier to use at a time when workers and employers need it most. The forms have electronic signature features and can be completed electronically, which reduces or eliminates the need for in-person contact. The forms also limit the need for written responses by including more specific questions that users can answer by checking a response box. The forms provide explanations and examples, which are intended to assist the user in responding to the questions.

For example, in the revised certifications of health care providers for a serious health condition (either for the employee’s own condition or that of a family member), the form includes definitions and examples for what qualifies as a serious health condition (inpatient care, incapacity plus treatment, pregnancy, chronic conditions, permanent or long-term conditions, or conditions requiring medical treatment), lists them out, and prompts the health care provider to indicate if any of those circumstances apply. Additionally, whereas the prior versions of the certifications included a prompt to “describe other relevant medical facts, if any, related to the condition for which the employee seeks leave” with several lines to do so, the revised certifications state that providers may, but are not required to, provide other appropriate medical facts. The new form only provides a couple of lines to do so.

Similarly, although a bit longer, the form Notice of Eligibility & Rights and Responsibilities provides more options for employers who do not create tailored forms and provides more details to employees than the prior form provided regarding topics such as benefits during leave.

With the new forms, the DOL also published a Q&A clarifying the following points:
 
  • The old forms can still be used; the new forms convey and collect the same information.
  • In fact, the FMLA does not require the use of any specific form or format. Employers must accept complete and sufficient certifications, regardless of format. Employers can also create their own version of the forms containing the same basic information. However, the DOL also cautions employers that if they request a medical certification, they may only request information that relates to the serious health condition for which the current need for leave exists, and no information may be required beyond that specified in the FMLA regulations.
  • The forms do not have any applicability to the FFCRA, which has different documentation requirements that can be found at 29 C.F.R. § 26.100 or https://www.dol.gov/agencies/whd/pandemic/ffcra-questions#15.
The new forms offer additional possibilities for employers, either to use as written, or as models to modify their existing forms. The DOL believes that the changes will reduce the time users spend providing information, improve communications between leave applicants and administrators, and reduce the likelihood of violations. The pointed questions, explanations, examples, and user-friendly nature of the forms suggest they will do just that. For employers, the revisions (particularly to the health care provider certifications) may reduce confusion of whether employees are eligible for leave and promote consistency in administration of leave benefits.

Request for Information

As noted, the DOL also issued an RFI to the public on FMLA regulations. The RFI recognizes that in the time of COVID-19, workplace flexibility ensured by job-protected leave is essential. In explicitly seeking input from employees and employers as to what they would like to see changed in the FMLA regulations, the DOL indicates openness to modifying current FMLA regulations, or, at the least, the comments will assist the DOL in issuing guidance on those topics.

The DOL suggests the following questions to frame the responses (and includes more specific sub-questions within the RFI itself), but also notes that it is not an exclusive list of issues for which the DOL seeks information:
 
  1. What, if any, challenges have employers and employees experienced in applying the regulatory definition of serious health condition?
  2. What, if any, specific challenges or impacts do employers and employees experience when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule?
  3. What, if any, specific challenges do employers and employees experience when employees request leave or notify their employers of their need for leave?
  4. What, if any, challenges have employers and employees experienced with the medical certification process (that are not addressed in the newly-revised forms)?
  5. Would it be helpful to provide additional guidance regarding the interpretations contained in opinion letters issued since 2018 through the regulatory process?
To conclude its list, the DOL asks for any specific information or data regarding other specific challenges that employers experience in administering FMLA leave or that employees experience in taking or attempting to take FMLA leave.

The DOL will accept comments until September 15, 2020. They may be submitted electronically, through the Federal eRulemaking Portal at https://www.regulations.gov/ or by mail.

While the RFI is not seeking comments on the amended FMLA protections provided under the FFCRA, employers are facing unique issues in administering FMLA benefits during the COVID-19 pandemic. The RFI provides an opportunity for employers to express those unique challenges, as well as address ongoing challenges they have faced under FMLA regulations. If you are interested in commenting, Ice Miller can assist in framing your areas of concern and submitting those comments.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
 
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