DOL Issues New FMLA Forms
Miller & Martin PLLC Alerts | July 20, 2020
Author: Stacie Caraway
A Quick Heads Up Regarding New FMLA Forms
In some admittedly strange timing, the Department of Labor (DOL) has issued new “regular” Family and Medical Leave Act (FMLA) certification and notice forms.
The good news (as we have seen regarding past “updated” forms) is that, substantively, these forms are not much different than the current ones. They mostly involve moving some existing sections around and adding detail to others as described below.
The reason for this alert, however, is:
- For those of you who use “print-outs” of the forms – specifically, the WH-380-E (the Medical Certification Form for an Employee’s Serious Health Condition), the WH-380-F (the Medical Certification Form for a Family Member’s Serious Health Condition), the WH-381 (the combined Eligibility and Rights and Responsibilities Notice) and the WH-382 (the Designation Notice) plus the WH-384 and 385 for Qualifying Exigency and Injured Servicemember Leave, respectively – to make sure you print out the updated versions to use going forward; and
- For those of you who use the PDF “fillable” versions of these forms on-line at www.dol.gov – to give you one less thing to have to “check” as far as wondering “is it just me, or do these forms now look different than they did the last time I used this site; am I using the right forms?”
So, What's Changed?
The indicator that you are using the latest forms is that the expiration date in the upper right-hand corner says 6/30/2023.
Again, aside from moving a few things around and adding a few more “boxes to check,” the new forms are not substantively different than the prior forms. One more detailed section for employers to be aware of on both the WH-381 (Combined Eligibility and Rights and Responsibilities Notice) and the WH-382 (Designation Notice) is a section regarding the use of paid leave during an (otherwise unpaid) FMLA leave. The WH-381 also has another more detailed section in which the employer can identify the specific family member for which the employee is requesting to use FMLA leave. The WH-382 also simplifies the “incomplete” or “unclear” certification form seven-day follow-up step for employers, by providing a place on the form for employers to describe what is incomplete or unclear. Previously, employers needed to do this using their own separate cover letter describing the issue(s) with the form.
There is not a new FMLA leave poster.
Also, for those who may have thought “new FMLA leave forms” would include forms relating to the new Expanded Family and Medical Leave which was provided under the new Families First Coronavirus Response Act (FFCRA), this is also not the case. Presumably since this expanded form of FMLA leave is only supposed to remain in effect until December 31, 2020, the DOL has not chosen to issue any certification or other forms relating to it (aside from the FFCRA poster which was issued back in March for posting by employers as of April 1, 2020).
We do not anticipate any great difficulty in completing the new “regular FMLA leave” forms for those of you who have been using the past ones. Certainly, if we can be of assistance as you begin to use and assess the new forms to determine FMLA leave coverage, please feel free to contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.
Hopefully, you are somewhat relieved to see a non-COVID-19-related alert. We also hope everyone is staying well as many try to reopen and we all wait to see what the next chapter will be in a year which will go down in history for all of us. Keep pressing on!