August 5, 2020

New Streamlined FMLA Forms

The Department of Labor’s Wage and Hour Division provides model Family and Medical Leave Act forms that can be used by employers to assist in satisfying their notice obligations, such as the obligation to provide information to employees of their eligibility, rights and responsibilities under the law, as well as the certification form to report the need for FMLA leave in the event of an employee’s or his/her family member’s serious health condition or for military leave purposes. 

On July 16, 2020, the DOL released what is hoped to be a more streamlined version of these model FMLA forms.  The new forms are intended to be simpler and easier for employees, employers, leave administrators and healthcare providers to understand and use.  In addition, these forms are formatted as electronically fillable PDF files and can be completed and saved electronically.  As with prior model forms, the DOL reiterates that an employer may use its own forms rather than these model forms.  If an employer uses its own forms, then such forms can only request the type of information contained in the DOL’s model forms.

Notification Forms

  • Eligibility Notice and Rights and Responsibility Notice (Form WH-381).  The revised form contains three parts.  Part I informs the employee of his/her rights to FMLA leave, Part 2 would be completed if additional information is required to support the request form FMLA leave, and Part 3 informs employees of their rights and obligations under the law, and includes information about substituting paid leave for FMLA leave. This form must be provided to the employee within five business days following the employer’s receipt of the employee’s notification of the need for FMLA leave.
  • Designation Notice (Form WH-382).  This notice informs the employee whether the FMLA leave request is approved, including the amount of leave that is counted against the employee’s FMLA entitlement.  The employer is required to complete and provide the designation notice to the employee within five business days once sufficient information is received to make an FMLA determination. This form can also be used to inform the employee that the certification is incomplete or insufficient, and additional information is needed. 
  • The model FMLA Notice/Poster (available in both English and Spanish) has not been changed at this time.  As a reminder, the FMLA notice/poster provides general information to employees about their rights under the law.  Employers are required to display the poster in a conspicuous place where it can be readily seen by employees and applicants.  It must also be provided to any eligible employee by including it in an employee handbook, or other written document that sets forth employee benefits or leave rights, and given to each new employee upon hiring. The notice/poster can be posted on the employer’s internal website and provided electronically to employees, as long as they have access to employer’s electronic system. 

FMLA Certification Forms

The DOL provides five different model certification forms that can be used for a variety of purposes, as listed below:

  • Form WH-380-E is used when a leave request is due to the employee’s serious health condition.
  • Form WH-380-F is used when a leave request is due to an employee’s family member with a serious health condition.
  • Form WH-384 is used when the leave request for qualifying exigency arising out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
  • Form WH-385 is used when requesting leave to care for a family member who is a current service member with a serious injury or illness.
  • Form WH-385-V is used when requesting leave to care for a family member is who a covered veteran with a serious injury or illness.

While the content of these certification forms have been modified, the applicable timeframes for providing and completing the forms have not changed.  Generally, the employer is obligated to provide the relevant certification forms within 5 business days from the date the employee notifies the employer of the need for leave.  Employees are then obligated to provide the completed form to the employer within 15 calendar days.

The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.

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