4 Thoughts on FMLA Requirements & the Revised Forms

Original Date: September 10, 2018

The Department of Labor (DOL) recently validated and rereleased the Family and Medical Leave Act certification forms and notices, through August 31, 2021.  According to the DOL, there were no significant changes to any of the downloadable forms we as employers provide to employees and currently utilize for communication and postings.  As we did see over the summer, the older form expired at the end of May 2018 and the DOL extended the expiration dates month by month through the end of August, until a new form was approved last week.

Below are the 4 thoughts on new and old FMLA forms:

• FMLA certification and notice approval process: The Office of Management and Budget receives the submitted FMLA forms from the DOL, every three years.  The review is required every three years to ensure the certification and notice process isn’t inefficient or bureaucratic.

• Mandatory use of the FMLA forms: “Employers don’t have to use these forms…the DOL logo makes the forms look more official than they are…copy and paste the information from the DOL form into the employer’s own form.”[i] If any employer does utilize their own form, it should be as simple and direct as possible.  Any language changes to the form or conflicting information can be a liability for employers.  Outside legal review is recommended prior to implementing organizational specific language for in-house forms.  I recommend using the FMLA forms provided by the DOL, they are easy to download and easy to explain to the workforce and approved by the government.

• Medical Certification Form: This form can help determine if requests made by an employee is a serious health condition covered by FMLA (and PFL if applicable), or not.  Serious health condition(s) is defined by the FMLA as an illness, injury impairment, physical or mental condition that requires inpatient care.  Staying in a hospital, hospice and/or residential medical facility.
• FMLA Completed Certifications: “Doctors aren’t the only health care providers who may certify FMLA leave. Podiatrists, dentists, clinical psychologists, optometrists and chiropractors can all certify leave, as can nurse practitioners, nurse-midwives, clinical social workers and physician assistants. Each of these providers must be licensed to practice in the state. Christian Science practitioners listed with the First Church of Christ, Scientist in Boston may certify FMLA time off as well.”[ii] Ensure the form is completed accurately by a certified health care provider.

FMLA requirements can vary state by state.  How does FMLA interact with Paid Family Leave?  Can we run the leave concurrently with PTO, vacation, sick leave, short-term disability, long-term disability, PFL, personal days, etc.?  Know what is required in your specific state prior to implementing or updating any policies or procedures.  A blanket policy on FMLA will not work throughout the country.  Ensure proactive audits with open FMLA cases.  Tracking and auditing open FMLA cases is vital to ensure legal compliance, consistency and accuracy.  Ensure medical certifications are up-to-date and recertified as necessary, hold employees accountable.  I have audited organizations that have not asked for recertification on open cases for many years.  Seek guidance if you are unsure how to audit, create a policy, enforce a policy or communicate with the employees and remember HIPPA and Paid Family Leave.  Lax FMLA processes will not work for any organization.

Below are the revised FMLA forms and notices:

Certification of Health Care Provider for Employee’s Serious Health Condition (Form WH-380-E).

Certification of Health Care Provider for Family Member’s Serious Health Condition (Form WH-380-F).

Notice of Eligibility and Rights & Responsibilities (Form WH-381).

Designation Notice (Form WH-382).

Certification of Qualifying Exigency for Military Family Leave (Form WH-384).

Certification for Serious Injury or Illness of Current Servicemember—for Military Family Leave (Form WH-385).

Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385-V).

Recently Updated New York State Paid Family Leave Decision on Premium Rate for Leave Benefits and Maximum Employee Contribution for Coverage Beginning January 1, 2019:

“Accordingly, based on commonly accepted actuarial principles, the Superintendent has determined that the premium rate for Family Leave Benefits for coverage beginning January 1, 2019 shall reflect the increase in benefits for 2019, determined as 0.153% of an employee’s gross wages each pay period up to and not to exceed an annual maximum employee contribution of $107. 97. If an employee’s contributions reach the annual maximum employee contribution of $107.97 before the end of the calendar year, the employee shall not be liable for any additional contributions for that year. Employers shall collect employee contributions consistent with this Decision.”[iii]

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/FMLA-forms-extended.aspx

[ii] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/FMLA-forms-extended.aspx

[iii] https://www.dfs.ny.gov/insurance/pfl/dec_prem_rate_2019.pdf