Some employers make tweaks to forms
The Family and Medical Leave Act (FMLA) forms expire June 30—not on their original expiration date of May 31—but aren’t likely to change when they’re replaced with new forms, experts say.
Employers who customize their own forms aren’t too concerned with the imminent replacement of the current forms, while employment law attorneys disagree on how much the DOL forms might be tweaked.
The FMLA forms are used to certify that an employee is eligible to take FMLA leave and to notify him or her of leave rights under the law. The forms expire under the Paperwork Reduction Act of 1995, which requires the Department of Labor (DOL) to submit its forms at least every three years to the Office of Management and Budget (OMB) for approval, so the OMB can ensure processes aren’t too bureaucratic.
The DOL is renewing the current FMLA forms on a month-to-month basis until it replaces them with new forms. But the new forms may be virtually identical to the current ones and have a different expiration date.
In 2015, the DOL made a few minor tweaks to the FMLA forms so they would conform with the Genetic Information Nondiscrimination Act.
This cycle, the DOL did not request any changes to the forms.
There have not been substantive changes to FMLA or its regulations in the past three years that would require changing any of the information provided or sought on the current forms, so it seems likely that the new forms, once issued, will be approved for the maximum three-year period.
Customization of Forms
Some employers customize the DOL-recommended forms for their own use. For example, some employers are covered by state and federal FMLAs and adjust the federal forms to reflect state law requirements. Others make minor changes, such as referring to workers as “associates” rather than “employees.”
On occasion, employers incorporate reference to their accrued leave policies, while others adopt robust language disclaiming liability under the FMLA.
However, we encourage our clients to remember that an employer can be held liable for using a form that harms the employee by misleading him or her about FMLA rights, and we recommend that any changes be reviewed by an outside expert to ensure that added language does not inadvertently conflict with the FMLA.
The current DOL forms are:
- Certification of Health Care Provider for Employee’s Serious Health Condition (Form WH-380-E).
- Certification of Health Care Provider for Family Member’s Serious Health Condition (Form WH-380-F).
- Notice of Eligibility and Rights & Responsibilities (Form WH-381).
- Designation Notice (Form WH-382).
- Certification of Qualifying Exigency for Military Family Leave (Form WH-384).
- Certification for Serious Injury or Illness of Current Servicemember—for Military Family Leave (Form WH-385).
- Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385-V).