DOL Updates Revised FMLA Forms and Requests Information Regarding Future Enhancements

July 21, 2020

Revised FMLA Forms

The DOL recently released updated FMLA Forms. The new forms released by the Wage and Hour Division (WHD) are simpler and designed for electronic use. The information gathered and presented is essentially the same, but the forms now feature more check boxes versus blank spaces for free form answers. For example:

  • The Notice of Eligibility & Rights and Responsibilities contains a section regarding Substitution of Paid Leave. The employer has the following options available and would select the appropriate option by marking the checkbox: “Some or all of your FMLA leave will not be paid,” “You have requested to use some or all of your available paid leave,” “We are requiring you to use some or all of your available paid leave,” or “Other” for short/long-term disability, workers compensation, or state leave laws.
  • On the revised Heath Care Provider Certification, the health care provider would select one qualifying condition from: inpatient care, incapacity plus treatment, pregnancy, chronic conditions, permanent or long term conditions, or conditions requiring multiple treatments. There is a section with relevant definitions. Also, the form clarifies that specific medical details such as diagnosis and symptoms are not required information as some state laws prohibit such.

WHD believes the changes will reduce the time users spend providing information, improve communications between leave applicants and administrators, and reduce the likelihood of violations.

The forms have a revision date of June 2020 with an expiration date of June 30, 2023. Employers who utilize the model FMLA forms for administration should begin using the revised forms as soon as possible.

WHD Request for Information

On July 17, 2020, the WHD requested information from the public concerning the effectiveness of the current FMLA regulations and related compliance resources. Specifically, the WHD would like to know:

  • What changes would help employees better understand and effectuate their rights and obligations under FMLA?
  • What challenges if any have employers and employees had in applying the definition of a serious health condition, administering leave on an intermittent basis or reduced leave schedule, and processing medical certifications?
  • Should additional guidance on topics addressed in recent opinion letters be addressed through regulatory action? Those topics include individualized education plans, organ donation and compensability of frequent 15-minute breaks.

The WHD hopes to obtain feedback on challenges and best practices in the use and administration of FMLA. Information collected will help the DOL identify areas for additional compliance assistance to ensure that FMLA is understood by both employers and employees.

Comments are due on or before September 15, 2020.

Women’s Bureau Request for Information

On July 16, 2020, the DOL’s Women’s Bureau issued a Request for Information related to paid leave. As background, the Women’s Bureau’s stated mission is to formulate standards and policies that promote the welfare of wage-earning women, improve their working conditions, increase their efficiency and advance their opportunities for profitable employment.

The request included reference to the findings of several studies (both by the DOL and outside parties) indicating that access to paid leave increases a new mother’s likelihood of being employed after childbirth, and that paid leave is offered by more employers in the private sector with higher paid earners versus low-income workers.

The bureau acknowledges that some states and localities have enacted paid family and medical leave laws that provide covered workers with the right to partial wage replacement through a state-run insurance program when they are not working due to their own or a family member’s serious health needs or bonding with a new child. Also, effective October 1, 2020, eligible federal workers will be entitled to 12 weeks of paid parental leave for the birth, adoption or fostering of a new child. This provision was part of the 2020 National Defense Authorization Act. The Families First Coronavirus Response Act (FFCRA), enacted earlier this year, requires certain employers to provide employees with paid sick leave or expanded FMLA for specific reasons related to COVID-19.

The bureau is seeking input from a variety of stakeholders to determine what state, local, private employer, or FFCRA leave provisions could serve as best practices when developing a paid leave program. These stakeholders include state and local officials, employers, unions, workers, individuals who are not currently employed, faith-based and other community organizations, universities and other institutions of higher education, foundations, chambers of commerce and other interested parties with experience or expertise in paid leave.

For the purposes of this information collection, paid leave means absence from work, during which an employee receives compensation, to care for a spouse, parent, child, or his or her own health.

The bureau is specifically requesting information based on 23 questions, including:

  • Who benefits from paid leave and who bears the costs?
  • What could be done to improve the existing patchwork of programs, which include state and employer-sponsored paid options? What are the impediments, cost and otherwise, faced in implementing those improvements?
  • Do employer-provided paid leave programs offer more generous benefits than state paid leave programs?
  • What is the ideal leave duration and how much pay should be replaced?
  • If you do not have access to paid leave, have you experienced individual or family circumstances for which you would have taken paid leave if it had been available? How might paid leave have affected those particular situations or outcomes?

Comments are due on or before September 14, 2020.

These documents make it clear that the DOL is looking to possibly make changes to FMLA rights and responsibilities. Employers should comment if interested. We will continue to follow developments that come out of this process.

DOL Press Release »
Revised FMLA Forms »
WHD Request for Information »
Women’s Bureau Request for Information »