DOL proposes changes to FMLA forms and notices

Even though the current optional-use FMLA forms and notices do not expire until 8/31/2020, the Department of Labor (DOL) is looking at making some potential changes to them. The forms include the following:

• Eligibility/rights & responsibilities notice; 
• Designation notice; 
• Certification for employee’s condition; 
• Certification for family member’s condition; 
• Certification for qualifying exigency; 
• Certification for military caregiver, current member; and 
• Certification for military caregiver, veteran. 

The DOL indicated that the goal in revising the forms is to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use. Some of the changes include the following:

Increasing the eligibility/rights & responsibilities notice from two to six pages, with the use of more check boxes and fewer blank lines for input, the addition of how many hours in the past 12 months the employee has worked (toward eligibility), a clearer statement that failure to provide information (e.g., certification) can result in leave being denied, greater explanation of the family relationship documentation/statement, more details on general leave entitlement, a bit more explanation of the rolling backward method, clearer location of key employee information, more detail and clearer location of substitution of paid leave information, clearer location of health benefits maintenance information, added information on other benefits, separation of return-to-work requirements, clearer location of periodic report information, a statement that if circumstances change the employee is to contact you within two days.

The designation notice would increase from one to four pages to include the reason for the leave, putting the determination of whether leave is approved or not closer together, setting off an entire section on whether additional information is needed, setting off information on second and third opinions, clearly delineating a section if leave is approved where the employer inputs information on how much leave is being counted, grouping information on paid leave, and separating requirements for fitness-for-duty certifications.

The certifications would also grow to six pages, but they better reflect the definition of a serious health condition and indicate that terms such as “lifetime” and “unknown” may be insufficient. The changes also include options for future treatment and incapacity. They include a place to indicate the date certification was requested, the date it is to be returned, more instructions for the employer, a spot for the doctor’s email address, an option to include information on when a condition will start, and clearer information on how much leave is needed, particularly intermittent leave. Finally, they include the definition of a serious health condition. The latter helped increase the length of the form.

For family members, a list is provided to choose from instead of simply a blank space, including an explanation of those who stand/stood in loco parentis. A list is also provided regarding what care the employee will be providing.

While the use of lists can make completing the forms easier, doctors might check more than one box, lending to some confusion.

If FMLA forms have often left you less than satisfied, feel free to provide your input, as comments are being accepted until October 4.