On July 16, 2020, significant changes have been noted by the U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) to streamline optional-use forms that employers and workers can use to coordinate leave requests. The department also issued a Request for Information (RFI) on July 17, 2020, in the Federal Register, to collect knowledge about the effectiveness of the existing regulations, and to help the department in administering FMLA.

As explained by the DOL, these new forms are simplified and “easier for employees, employers, leave administrators, and healthcare providers to understand and use.” The documents, updated with significant public feedback, provide more questions that users can answer by checking a response box and online signature features to minimize contact.

WHD expects that the modifications will decrease the amount of time that users spend providing information, enhance communication between leave applicants and administrators, and minimize the possibility of violations.

FMLA overview & addition of electronic forms.

Large employers subject to the Family Medical Leave Act (FMLA) must provide up to twelve (12) weeks of protected leave to qualified employees for specified, family-related reasons.  Only certain situations will give rise to protected FMLA leave. These situations include:

  • The birth and care of a child;
  • Placement of a child for adoption or foster care;
  • To care for a family member with a serious health condition;
  • To care for oneself when the employee has a serious health condition;
  • Due to a ‘qualifying exigency’ due to a family member’s active duty status in the Armed Forces
  • To care for a ‘covered servicemember’ with a serious injury or illness.

Due to the COVID-19 National Emergency, expanded FMLA provisions were announced to assist employees who are unable to work due to a need to care for a child whose school or child care provider is closed or unavailable due to the pandemic. For more information on the expanded FMLA provisions, visit our support site at support.primepay.com.

Also, in Aug. 2019, the DOL issued an opinion letter clarifying further permissible uses of protected leave under the FMLA, now allowing parents to take leave under FMLA to attend Committee on Special Education (CSE) meetings addressing the employee's son’s or daughter's Individualized Education Program (IEP).

The DOL states, “It is mandatory for employers to provide employees with notice of their eligibility for FMLA protection and their rights and responsibilities.” According to the Electronic Code of Federal Regulations, employers “may require medical certification of the employee's or the family member's serious health condition or the covered servicemember's serious injury or illness.” However, certification is not required unless the employer requests. The employee can use the optional DOL forms designed for purposes of medical certification.

The department produced two electronic fillable PDF optional-use forms. One for when applying for leave for their own medical condition, as well as one to complete when requesting leave for a family member’s medical condition. The DOL states that “employers may use their own forms,” as an alternative, “if they provide the same basic notice information and require only the same basic certification information.”

DOL’s Request for Information.

Through filing a Request for Information, the DOL hopes to gain insight into “which additional compliance assistance could be helpful, including opportunities for outreach to ensure employers are aware of their obligations under the law and employees are informed about their rights and responsibilities in using FMLA leave.”

Below are a few questions asked in this document:

  • “What would employees like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA?”
  • “What would employers like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA?”
  • “What, if any, challenges have employers and employees experienced in applying the regulatory definition of a serious health condition?”
  • “What, if any, difficulties have employers experienced in determining when an employee has a chronic condition that qualifies as a serious health condition under the regulations?”
  • “What, if any, difficulties have employees experienced in establishing that a chronic condition qualifies as a serious health condition under the regulations?”

Written comments are available for submission on or before Sept. 15, 2020. You can submit your comments here.

For more information on these enhancements to the FMLA forms, click here.

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Disclaimer: Please note that this is not all-inclusive. Our guidance is designed only to give general information on the issues actually covered. It is not intended to be a comprehensive summary of all laws which may be applicable to your situation, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion. Consult your own legal advisor regarding the specific application of the information to your own plan.