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Department of Labor Publishes RFI and Releases Simplified FMLA Forms

on Tuesday, 28 July 2020 in Labor & Employment Law Update: Sarah M. Huyck, Editor

On July 16, 2020, the U.S. Department of Labor (“DOL”) announced that it will publish a Request for Information (“RFI”) in the Federal Register seeking public feedback on the administration and use of the Family and Medical Leave Act (“FMLA”).  At the same time, the DOL released simplified FMLA forms that employers can use during the FMLA process.  Here’s what you need to know.

DOL Seeks Public Input on FMLA Process

The DOL’s RFI requests input on specific challenges or best practices related to the use or administration of FMLA leave.  According to the DOL, information from the public about what is and is not working well in the administration of the FMLA will help the DOL provide better compliance assistance tools for employers and employees alike. 

The DOL ultimately wants to know what employees/employers would like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA.  To do so, it asks several specific questions to help frame the responses.  Relevant to employers, those questions include:

  1. “Serious health condition”
    • What, if any, challenges have employers experienced in applying the regulatory definition of a serious health condition? For example, what, if any, conditions or circumstances have employers encountered that meet the regulatory definition of a ‘‘serious health condition’’ but that they believe the statute does not cover?
    • What, if any, difficulties have employers experienced in determining when an employee has a chronic condition that qualifies as a serious health condition under the regulations?
  1. Intermittent or Reduced Schedule Leave
    • What, if any, specific challenges or impacts do employers experience when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule? For example, what, if any, specific challenges do employers experience when the timing or need for intermittent leave is unforeseeable?
  1. Employee Notice Requirements
    • What, if any, specific challenges do employers experience when employees request leave or notify their employers of their need for leave? For example, do employees convey sufficient information to notify employers that the employee may have an FMLA-qualifying reason for leave or that the employee is requesting FMLA leave?
  1. Medical Certification
    • What, if any, challenges have employers experienced with the medical certification process that are not addressed by the updated FMLA forms? For example, what, if any, challenges have employers encountered in determining whether a certification establishes that the employee or employee’s immediate family member has a serious health condition under the FMLA and the amount of leave needed?

Additionally, the DOL requests comments about whether it would be helpful to provide more guidance through the regulatory process regarding the interpretations contained in any of its recent FMLA-related opinion letters.  It also seeks any other information or data regarding other specific challenges that employers experience in administering FMLA leave, or any best practices. 

Any member of the public has a right to submit a comment through the Federal Register website,  All comments must be received by 11:59 p.m. on September 15, 2020.  Keep in mind, however, that anyone who submits a comment should understand and expect that the comment, including any personal information provided, will become a matter of public record and may be posted without change.

Revised Optional FMLA Forms

Almost a year ago, on August 5, 2019, the DOL published a Federal Register notice seeking public comment on proposed revisions to its optional-use FMLA forms.  On July 16, 2020, the DOL made its revised forms available on its website (available here). 

The DOL’s revisions and adjustments are intended to simplify the FMLA process for employers, employees, and the employee’s healthcare provider.  For this reason, the most noticeable changes are to the format and the detail of the instructions.  For instance, the forms now include fewer questions that require written responses, which are instead replaced by statements that can be completed by checking a box.  Additionally, in support of minimized contact in the current COVID-era, the DOL boasts that the forms add electronic signature features.  Ultimately, the changes reduce the amount of time it takes a healthcare provider to provide information, and help leave administrators review and communicate information to employees more directly and with greater clarity, reducing the likelihood of violations.

The DOL clarifies that employers may still use the prior version of the FMLA forms, as they contain the same substantive information.  Employers may also continue to use their own forms, so long as they provide the same basic notice and/or certification information. 

On that note, remember that although these new forms are still optional, we typically recommend their use because it eliminates the risk that the DOL could find an employer overreached in the information it requests from employees.  Employers who wish to create their own forms should consult with their attorney to assure that any adjustments reflect current regulatory requirements.

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