On July 17, 2020, the US Department of Labor (DOL) released new forms for use under the Family and Medical Leave Act (FMLA). With a new two-step process, the DOL opines that the process will be easier and will ensure the capture of all necessary information. Electronic signatures are also part of the process to help reduce human contact. The attached forms are:

1. Notice of Eligibility & Rights and Responsibilities (Form WH-381). This form (step one of the process) notifies employees as to the eligibility requirements for FMLA leave and sets forth the employer’s obligations. It is to be issued when an employee requests FMLA leave or when the employer acquires sufficient knowledge that the leave may be FMLA-qualifying. Notice can be oral or in writing, but it is always best for the employer to have proof of these communications. An employee who is determined to be not eligible for FMLA leave must be notified of the specific reason why. This can be a simple written statement, with a copy placed in either the personnel or the medical file, depending on the subject matter.

2. Designation Notice (Form WH-382). This form (step two) is sent to the employee to signify both whether the leave has been designated as FMLA and the expected duration of the leave. It includes some of the same information that is included in the Notice of Eligibility form. It must be communicated within five business days of the initial request, absent extenuating circumstances. Where appropriate, the Notice of Eligibility and the Designation Notice may be given at the same time.

3. Certifications of Health Care Provider for a Serious Health Condition (Forms WH-380-E and WH-380-F). These forms are used if an employer wants the employee to verify the medical reason for the requested leave and the duration of said leave. Form WH-380-E is for the employee’s own health condition, and Form WH-380-F is for the health condition of a family member.

4. Certifications for Military Family Leave (Forms WH-384, WH-385, and WH-385-V). These forms are used for leave related to the deployment of the employee’s spouse, child, or parent, and for leave to provide care for family members who are active service members or covered veterans.

Remember, these forms are optional but include information that must be communicated to the employee. A company can always use its own forms, as long as the same information is contained therein.

In addition to publishing these improved optional-use forms, the DOL is currently seeking public input regarding implementation of the current FMLA regulations. Written comments may be submitted electronically or by mail and are due by September 15, 2020. The DOL’s request seeks input from both employers and employees and pointedly asks both groups what changes they would like to see in the FMLA regulations to better effectuate the rights and obligations that exist under the FMLA. This request for information does not include the Families First Coronavirus Response Act, which includes temporary amendments to the FMLA that are scheduled to expire on December 31, 2020.