The U.S. Department of Labor (DOL) has just come out with new Notice and Certification forms to use for employees seeking time off under the Family and Medical Leave Act (FMLA). In addition, they are seeking public comment on changes that should be made in the FMLA regulations.
The new forms do not really change the substance of the information that can be sought since, of course, the regulations governing that issue have not actually changed. However, the forms now lean more toward a “check-the-box” format that will assist in verifying more specific information than what employers are used to getting in the older forms.
Some notable changes include:
Notice of Eligibility
The form now identifies the family member to whom the employee will be providing care during the FMLA leave. This may not have much impact unless the employee was somehow confused about their inability to seek FMLA leave to care for more distant relatives.
The new form also sets out an extensive section with various check-box options for how the FMLA leave will run concurrently with the employer’s existing paid leave programs. This will be a great benefit to both employees and employers by providing perhaps a simpler explanation of this critical issue.
The new Designation Notice addresses one of the most misunderstood FMLA issues for both employees and employers – that if a leave request qualifies for FMLA coverage, it must be treated as such even if the employee (or sometimes the employer) does not wish to do so. The form states:
The employer is responsible in all circumstances for designating leave as FMLA-qualifying and giving notice to the employee. Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave
Thus, the form makes clear that employees may not treat FMLA as a benefit to be applied or not applied as they wish (e.g. “don’t count this as FMLA because I want to save some vacation for later in the year”), nor may employers ignore FMLA for their convenience (e.g. “if we don’t treat this as FMLA, we won’t have to pay their insurance for the next couple of months”).
The new form also provides greater precision in regard to dealing with an incomplete certification, including a requirement that the employer “[s]pacify the information needed to make the certification complete and/or sufficient.”
One very helpful change is the inclusion of directives to the health care provider to provide their “best estimate” as to:
- how long the medical condition might last;
- the beginning and end date for treatments;
- the duration of treatment (including recovery period);
- in the case of reduced schedule leave, the schedule that the employee will be able to work; and
- in the case of intermittent leave, the frequency and duration of episodes of incapacity.
These directives will help reduce the number of times that employers receive certification forms that address these matters with responses like “indefinite”, “uncertain” or “to be determined.”
Finally, the new certification form sets forth the list of circumstances (e.g. inpatient care, incapacity plus treatment, chronic condition) that constitute a serious health condition that qualifies for FMLA. At the end of this list, the DOL has included a checkbox for “None of the above” and a directive to proceed directly to the signature page. Thus, for the first time, a health care provider can officially certify that there is no need for a FMLA leave.
DOL Request For Information
The DOL also published a “request for information” on suggested changes to FMLA regulations. Their primary inquiry was “What would [employees and employers] like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA”
More specifically, indicated a request for input on such matters as:
- Challenges that employers and employees have experienced in applying the definition of a serious health condition;
- Challenges in administering intermittent and reduced schedule leaves;
- Challenges in regard to employee requests for leave;
- Challenges in regard to the certification process that are not addressed in the new forms; and
- Challenges and data in regard to other challenges in the administration of FMLA leave.
Comments are due by September 16, 2020.
The new forms certainly are not earth shattering but they should help streamline the process a bit and head off some confusion for both employers and employees.
The bigger impact may be felt if the DOL receives helpful input from the public and proceeds with changes to the FMLA regulatory scheme. Some relief in administering intermittent leaves would be particularly welcome.
Of course, as we saw in 2016 with the proposed overtime changes, all of this could come to naught if there is a change in administration in November.