In the middle of the COVID-19 pandemic, the U.S. Department of Labor hit the pause button on pandemic concerns and returned at least for a moment to the good old fashioned F-M-L-A.
This morning, the DOL issued new model notices and forms to be used by employers in the administration of the FMLA. The notices and forms, though different in their appearance (think lots of small boxes, longer and far more numbered paragraphs, and even a few colors), are not necessarily game changers when it comes to substance. These new model documents tend to tweak the old forms around the edges, and as a result, they’re more likely to elicit a shrug of the shoulders than a high five.
Still, there are a number of changes, some for the better, some that are head scratchers. With the caveat that I’m still digesting this new paperwork, here are some of my initial takeaways:
Notice of eligibility
- Separate sections outline employee rights and responsibilities generally in a clearer manner than what we’re used to in the past. But DOL takes up a ton of real estate to get there. Longer is very rarely better. But is this time the exception?
- The notice includes a host of check boxes to specify precisely which family member you will care for. I guess this is good?
- The notice provides a much clearer explanation of how employer-provided, accrued paid leave runs concurrently with FMLA
- Unfortunately, it restates what has always been misleading about the form: that the 15-day period to return certification runs from the time the employer provides the medical certification, which is not true. The employee has 15 days from the time they receive the certification, not from the time the employer actually sends it out. (See 29 CFR 825.313b) The date the employer sends and the date the employee receives are always two different dates unless the employer emails the documents. This could have been an easy fix, but DOL swung and missed on this one. Consequently, confusion remains.
- The Notice makes clear that employers are obligated to designate FMLA leave whenever leave is covered by FMLA, even if the employee and/or employer do not want FMLA to apply. Early on, the DOL harkens back to its 2019 opinion letters in which DOL made clear that “neither the employee nor the employer may decline FMLA protection for leave.”
- If need for leave changes. “The FMLA requires that you notify us as soon as practicable if the dates of scheduled leave change, are extended, or were initially unknown.” This undermines an employer’s call-in requirements. Technically, this is a regurgitation of the regulations, in part, it really should be edited by any employer that has a specific call in procedure.
- Like the Notice of Eligibility, this form again offers a clearer explanation of how paid leave will run concurrently with FMLA
- The most notable change, however, might very well be DOL’s effort in outlining the steps that an employee should take to cure an incomplete or insufficient certification. Here, the DOL requires the employer to specifically explain what is missing and/or insufficient.
- Unlike its predecessors, this new certification makes clear that an employer dare not request certification for FMLA leave to bond with a healthy newborn child or a child placed for adoption or foster care. Yeah, this is a no brainer, but plenty of employers still get this wrong.
- Notably, the new form requires a “best estimate” of the employee’s or family member’s future treatment, which surely will be helpful to employers
- Back when the draft forms were circulated by DOL last fall, I complained that the main portion of the proposed medical certification form consisted of a series of boxes associated with a “serious health condition” or pregnancy that the health care provider simply needs to “check” without giving much thought to the situation. This particular section, I argued, would lead the physician to conclude that he/she is obligated to check one of the boxes so as to confirm that the employee or family does indeed have a serious health condition. In other words, simply checking a box causes the doctor to make a legal conclusion rather than provide actual medical facts to allow the employer to make the ultimate determination as to whether the absence is covered by the FMLA. In the final version of the certification form, however, DOL added a box in which the health care provider could confirm there is NO serious health condition. Bingo!
These new forms are not without some oddball issues. At the top of my list, just two for now:
- Every new notice and form requests that the employee’s name be written at the top of each page. What are we, second graders? Come on, dumb idea.
- I’ve always thought it is ridiculous that the medical certification form does not – as its first question – ask that the health care provider provide the medical facts supporting the employee’s need for leave. Seems simple enough, right? After all, the employer wants basic information right out of the gate why the employee can’t come to work. This only gets worse under the new certification form, as it’s not until page 3 of the new form when the health care provider is asked to describe any medical facts until page 3 of the certification.
The DOL Wants Our Opinion
Along with its new notice and forms, the DOL also published a “request for information” (pdf) asking employers and employees for their feedback on potential changes to the FMLA regulations. Initially, the DOL generally asked what employees and employers “like to see changed in the FMLA regulations” to better put into effect everyone’s rights and obligations under the FMLA?
But then DOL drilled down further. For example, the agency is seeking our opinion on:
- What, if any, challenges have employers and employees experienced in applying the regulatory definition of a serious health condition?
- What, if any, specific challenges or impacts do employers and employees experience when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule?
- Best practices and suggestions to improve implementation of the Act’s intermittent leave provisions.
- What, if any, specific challenges do employers and employees experience when employees request leave or notify their employers of their need for leave? For example, do employees convey sufficient information to notify employers that the employee may have an FMLA-qualifying reason for leave or that the employee is requesting FMLA leave?
- What, if any, challenges employers and employees have experienced with the medical certification process that are not addressed by the newly revised forms?
- Whether it would be helpful to provide additional guidance regarding the interpretations contained in any of the opinion letters issued over the past two year.
- Specific information and any available data regarding other specific challenges that employers experience in administering FMLA leave or that employees experience in taking or attempting to take FMLA leave.
Comments are due to the DOL by September 16, 2020 (60 days after this publication). Whether any of our input will ever see the light of day is anyone’s guess, especially if there is a new occupant in the White House come this January.
Either way, I’m sharpening my pencil to start my first draft…
Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.