The U.S. Department of Labor (“DOL”) recently published seven new Family and Medical Leave Act (“FMLA”) forms. These optional-use forms can be used by employers to provide required notices to employees, and by employees to provide appropriate certification of their need for leave. However, employers are still free to use their own forms, so long as they provide the same basic notice information and require only the same basic certification information.
The new forms are:
- WH-380-E – Employee’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee.
- WH-380-F – Family Member’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee’s family member.
- WH-381 – Rights and Responsibilities 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.
- WH-382 – Designation Notice – 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.
- WH-384 – Qualifying Exigency – for use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
- WH-385 – Military Caregiver Leave of a Current Servicemember – for use when requesting leave to care for a family member who is a current service member with a serious injury or illness.
- WH-385V – Military Caregiver Leave of a Veteran – for use when requesting leave to care for a family member who is a covered veteran with a serious injury or illness.
As part of the release, the DOL also provided a few points of guidance regarding the new FMLA forms:
- Employers are free to continue to use the old FMLA forms. While the DOL believes the new forms will be easier to use and understand, the FMLA does not mandate the use of any specific form.
- Employers cannot require an employee who has already completed the old certification form to provide that same information on the new form.
- Employers are free to use the DOL prototype forms or create their own forms containing the same basic information, as long as no information is required beyond what is specified in the FMLA regulations.
- Employers must accept a complete and sufficient certification, regardless of format. This is true even when an employee does not use an employer’s form.
- Even though the expiration date of the DOL forms has passed, they are still effective.
- These new forms do not apply to the Families First Coronavirus Response Act.
Many commenters believe the new forms represent a significant improvement over the old forms. Employers are encouraged to use the new forms and/or review their current forms to determine whether any updates should be made.