Last week, the United States Department of Labor ("DOL") introduced new standard forms for employers to use when employees seek and use leave under the federal Family and Medical Leave Act ("FMLA"). These new forms come after the DOL announced it planned to update the FMLA forms in August 2019.
The forms, which include a designation notice and notice of eligibility of rights and responsibilities, as well as certification forms for various FMLA-eligible leaves, are free to access on the DOL's website. The use of the forms is optional, but employers should consider using these forms because the DOL-provided forms help ensure that employers covered by the FMLA present employees with the information required by the FMLA and applicable regulations. The forms can also help employees provide certification of their need for leave under the FMLA and ensure that employers only ask for information allowed by the FMLA for certification of need for leave. If employers decide to use their own forms, they must make sure that the forms provide all required information and ask for only the information needed to certify FMLA leave and allowable under applicable law.
Along with the release of the new forms, the DOL provided a Q&A on its website about the new forms. The Q&A section, among other things, highlights some of the changes to the new forms. For example, the DOL explained that the new forms are intended to be easier to understand than the previous version, even though the substantive requirements for employers have not changed recently. Additionally, the DOL notes that if an employer provides an employee the DOL certification form for the employee to complete and the employee submits to the employer a different form, the employer must accept the form if it contains all of the information needed to determine if the employee qualifies for FMLA leave. As referenced above, employers must be cautious to only ask for information relating to the serious health condition for which the employee needs leave at the time and cannot ask for information beyond that specified by FMLA regulations. Further, the DOL explains that employees taking leave under the Families First Coronavirus Response Act ("FFCRA") do not need to use these new FMLA forms because the FFCRA has different documentation requirements.
Finally, the DOL published a Request for Information online seeking comments from interested parties about changes to the FMLA regulations. This request for feedback indicates that the DOL may be revamping the FMLA regulations in the coming year, and this is a good opportunity for employers in particular to provide feedback about any areas of confusion within the FMLA. The DOL is accepting comments through September 15, 2020.
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