New Optional-Use FMLA Forms Released

July 20, 2020

Employers covered by the federal Family and Medical Leave Act (FMLA) are obligated to provide their employees with certain critical notices about the FMLA so that both the employees and the employer have a shared understanding of the terms of the FMLA leave. These FMLA employer notification requirements are described in the Wage and Hour Division Fact Sheet # 28D: Employer Notification Requirements under the Family and Medical Leave Act. The Department of Labor (DOL) has now developed optional-use forms which can be used by employers to provide required notices to employees, and by employees to provide certification of their need for leave for a federal FMLA qualifying reason. The DOL has revised these FMLA forms to make them easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave. These forms are electronically fillable PDFs and can be saved electronically. Alternatively, employers may use their own forms, if they provide the same basic notice information and require only the same basic certification information.

The DOL has also prepared a series of Questions and Answers about the optional-use FMLA forms. These Q&As confirm that these new optional FMLA forms have no applicability to the leave provisions under the Families First Coronavirus Response Act (FFCRA). The FFCRA has different documentation requirements which can be found here (see items 15 and 16). Links to the new optional-use FMLA forms are provided below.

Notice Forms – Employers can use the following forms to provide the notices required under the FMLA.

• General Notice, the FMLA Poster: Satisfies the requirement that every covered employer display or post an informative general notice about the FMLA. This notice can also be used by employers with eligible employees to satisfy their obligation and also to provide FMLA general notice to employees in written leave guidance (e.g., handbook) or individually upon hire.
• Eligibility Notice, Form WH-381: lnforms the employee of his or her eligibility for FMLA leave or at least one reason why the employee is not eligible.
• Rights and Responsibilities Notice, Form WH-381(Combined with the Eligibility Notice): Informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
• Designation Notice, Form WH-382: Informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.

Certification Forms – Certification is an optional tool provided by the FMLA for employers to use to request information to support certain FMLA-qualifying reasons for leave. An employee can provide the required information contained on a certification form in any format, such as on the letterhead of the healthcare provider, or official documentation issued by the military. The completed certification forms are meant to be sent to the employee to provide to his or her employer. There are five DOL optional-use FMLA certification forms.

Certification of Healthcare Provider for a Serious Health Condition

• Employee’s Serious Health Condition, Form WH-380-E: Use when a leave request is due to the medical condition of the employee.
• Family Member’s Serious Health Condition, Form WH-380-F: Use when a leave request is due to the medical condition of the employee’s family member.

Certification of Military Family Leave

• Qualifying Exigency, Form WH-384: Use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
• Military Caregiver Leave of a Current Servicemember, Form WH-385: Use when requesting leave to care for a family member who is a current service member with a serious injury or illness.
• Military Caregiver Leave of a Veteran, Form WH-385-V: Use when requesting leave to care for a family member is who a covered veteran with a serious injury or illness.

Employers are encouraged to contact their leave and employment law advisors for more information about the FMLA and the new forms, or to contact the DOL Wage and Hour Division toll-free helpline at 1-866-4US-WAGE (487-9243). Additional information is also available at here.

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