Pension & Benefits News DOL looking for information on FMLA guidance, announces revised forms
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Wednesday, July 29, 2020

DOL looking for information on FMLA guidance, announces revised forms

By Pension and Benefits Editorial Staff

The Labor Department is seeking information about its regulations implementing the Family and Medical Leave Act of 1993 in order "to gather information concerning the effectiveness of the current regulations and to aid the Department in its administration of the FMLA," according to a notice published in the Federal Register on July 17, 2020. The information provided from the public is intended to help the DOL identify topics for which additional compliance assistance could be helpful, including opportunities for outreach to ensure that employers are aware of their obligations under the law, and that employees are informed about their rights and responsibilities in using FMLA leave.

FMLA forms revised. The DOL also announced what it called "significant steps to streamline optional-use forms that workers can use to request and employers can use to coordinate leave" under the FMLA. The Wage and Hour Division’s new forms are said to be simpler and easier for employees, employers, leave administrators, and healthcare providers to understand and use. The forms, which were revised with substantial public input, include more questions that users can answer by checking a response box and electronic signature features to reduce contact. According to the WHD, the changes will reduce the time users spend providing information, improve communications between leave applicants and administrators, and reduce the likelihood of violations.

These five DOL optional-use FMLA certification forms were revised in June 2020:

Certification of Healthcare Provider for a Serious Health Condition

  • Employee’s serious health condition, form WH-380-E – use when a leave request is due to the medical condition of the employee.
  • Family member’s serious health condition, form WH-380-F – use when a leave request is due to the medical condition of the employee’s family member.

Certification of Military Family Leave

  • Qualifying Exigency, form WH-384 – use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
  • Military Caregiver Leave of a Current Servicemember, form WH-385 – use when requesting leave to care for a family member who is a current service member with a serious injury or illness.
  • Military Caregiver Leave of a Veteran, form WH-385-V – use when requesting leave to care for a family member is who a covered veteran with a serious injury or illness.

In its questions and answers about the revised FMLA forms, the DOL made clear that the old forms may still be used. The DOL revised the FMLA forms in June 2020 to make them easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave, but the revised forms convey and collect the same information, which can be provided in any format. The agency also stressed that employees cannot be required to provide a new certification, using the revised form, when they have already provided the required FMLA information using the old certification form. Employees may provide the required information contained on a certification form in any format.

Request for information. The DOL indicated in its request for information that the results of employee and employer surveys continue to show an ongoing need for education and awareness in the administration and use of FMLA leave. Information about what is and is not working well can further inform and guide the DOL in issuing "modernized tools" to aid in understanding and applying the FMLA. Thus, the DOL is seeking input from employers and employees on the current FMLA regulations, specifically:

  • What would employees like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA?
  • What would employers like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA?

The DOL is inviting interested parties with knowledge of, or experience with, the FMLA to submit comments, information, and data in order "to provide a foundation for examining the effectiveness of the current regulations in meeting the statutory objectives of the statute." To that end, the DOL discussed six issues, with questions to frame responses to its information request; they are not intended to be an exhaustive list.

Serious health conditions. As to issues related to a "serious health condition," which is defined as "an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider," the DOL posed these questions:

  • What, if any, challenges have employers and employees 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?
  • Conversely, what, if any, conditions or circumstances have employees experienced that they believe the statute covers, but which their employer determined did not meet the regulatory definition of "serious health condition"?
  • What, if any, difficulties have employees experienced in establishing that a chronic condition qualifies as a serious health condition under the regulations?

Intermittent leave. As the DOL explained, an employee may take FMLA leave on an intermittent basis (taking leave in separate blocks of time for a single qualifying reason) or on a reduced leave schedule (reducing the employee’s usual weekly or daily work schedule) due to the employee’s own serious health condition, to care for an immediate family member who has a serious health condition, or to care for a covered servicemember with a serious illness or injury when such leave is medically necessary. As to intermittent leave, the DOL is looking for answers to these questions:

  • What, if any, specific challenges or impacts do employers and employees 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?
  • Similarly, what, if any, challenges do employees seeking or taking intermittent leave or using a reduced leave schedule experience?
  • For example, do employees find it difficult to request and use intermittent leave in their workplaces?
  • What are the best practices and suggestions to improve implementation of the intermittent leave provisions?

Leave notice. An employee seeking to use FMLA leave is required to provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable, the DOL noted, among other things. Here the department posed these questions:

  • What, if any, specific challenges do employers and employees 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?
  • Similarly, are employees aware of and able to comply with their employers’ specific procedural requirements for providing such notice?
  • Are employees aware of the specific information they need to provide?
  • What additional tools could the DOL provide to facilitate FMLA compliance?

Health condition certification. The DOL also posed several questions about employer requirements that an employee provide a health care provider’s certification to support the need for leave for a serious health condition:

  • What, if any, challenges have employers and employees experienced with the medical certification process that are not addressed by the DOL’s proposed revisions to optional use forms for notification and certification obligations (August 5, 2019)?
  • 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?
  • Similarly, what, if any, challenges have employees encountered in obtaining a certification that contains sufficient information to establish the existence of a serious health condition and the amount of leave needed?
  • The department welcomes suggestions regarding strategies to address challenges with the certification process.

Opinion letters. In addition, the DOL discussed the seven opinion letters on FMLA topics that it has issued since 2018 and is soliciting comments about whether it would be helpful to provide additional guidance on the interpretations contained in any of these opinion letters through the regulatory process.

Administering and taking leave. Here, the DOL is asking for specific information and any available data about other specific challenges that employers experience in administering FMLA leave, or that employees experience in taking or trying to take FMLA leave. The DOL welcomes any information on the administration and effectiveness of the current regulations and suggestions about specific strategies to address those challenges.

The DOL is also looking for information concerning best practices employees and employers may have experienced in using or administering the FMLA.

Comments. Comments on the DOL’s information request must be submitted within 60 days after its publication in the Federal Register. Further instructions for submitting comments are detailed in the notice.

"The improvements we announced today reflect the ongoing commitment of the U.S. Department of Labor’s Wage and Hour Division to support workers’ families and those who employ them at a time they need it most," said WHD Administrator Cheryl Stanton. "Making application and administration of the Family and Medical Leave Act more efficient and seeking public input for continued improvements ensures the effective implementation of the law and compliance with it."

SOURCE: 85 FR 138, July 17, 2020.

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