Executive Summary: The U.S. Department of Labor (DOL) released new Family and Medical Leave Act (FMLA) notices and certification forms on September 4, 2018. The new forms are valid until August 31, 2021, and are available for download from the DOL Website. Notably, the DOL did not make any material changes to the prior forms; however, employers should begin using the updated forms immediately. While employers are not required to use the DOL forms, their use is recommended and can assist with the request and award of Family and Medical Leave (FML), specifically:
Notice of Eligibility and Rights and Responsibilities: The Notice of Eligibility, available here, is provided to an employee who applies for FML. This notice advises the employee if he or she is eligible for FML. The employer must provide the completed form to the employee within five business days, absent extenuating circumstances, after being told by the employee that he or she needs to take leave or after the employer otherwise learns of the employee’s need to take leave. If an employer determines that the employee is not eligible to take FML, it must provide at least one reason why the employee does not meet the established eligibility requirements.
Designation Notice: The Designation Notice, available here, informs the employee whether his or her FML request is approved. Once an employer has sufficient information to determine whether an employee qualifies for FML, it has five business days, absent extenuating circumstances, to notify the employee. If an employer requires the substitution of paid leave in conjunction with the use of FML, the Designation Notice must inform the employee of the employer’s policy. Also, if an employer wants a returning employee to provide a fitness-for-duty certification before returning to work (which is always recommended), a statement to that effect must be included on the Designation Notice, accompanied by a list of the essential functions of the employee’s position or a job description. If the employee’s request for leave is not designated as FML, the employer must notify the employee of any additional information that may be required in order to designate the time as FML.
Employee Rights Under the Family and Medical Leave Act: The most current FMLA-required workplace poster, available here, must be posted in a conspicuous location where it can be readily seen by all employees and applicants for employment. The General Notice or its contents, must also be distributed to each employee; this requirement may be satisfied by including a FML policy, which includes all required information, in an Employee Handbook.
Certification of Health Care Provider for Employee’s Serious Health Condition: The form, available here, is for use when an employee requires leave for his or her own serious health condition.
Certification of Health Care Provider for Family Member’s Serious Health Condition: The form, available here, is for use when an employee requires leave for a son, daughter, parent or spouse who has a serious health condition.
Certification for Qualifying Exigency for Military Family Leave: The form, available here, is for use when an employee requires leave for a qualifying exigency arising out of the fact that the employee’s spouse, son, daughter or parent is a covered military member on active duty or has been notified of an impending call or order to active duty in support of a contingency operation.
Certification for Serious Injury or Illness of Current Servicemember for Military Family Leave: The form, available here, is for use when an employee requires leave to care for a covered Servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the covered Servicemember.
Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave: The form, available here, is for use when an employee requires leave to care for a covered Veteran with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the covered Veteran.
Bottom Line: The DOL’s FMLA forms and notices are a valuable tool both for the employers who process and grant FML, as well as for the employees who request it. If you have any questions regarding the recently issued FMLA notices or forms, including how they should be distributed, or how to update your employee handbook to include the General Notice or its contents, please feel free to contact us anytime.