New FMLA Forms Offer Some Improvements, Don’t Address FFCRA Leave

By William Pokorny and Tracey Truesdale - Franczek P.C.

July 16, 2020

On July 16, 2020, the U.S. Department of Labor released an updated suite of FMLA forms for employers. According to the Department, the forms are designed to be simpler and easier to understand and complete, substituting check boxes for some written responses and supporting electronic completion and signatures. Notably, the new model forms do not address the paid sick leave or expanded FMLA leave requirements of the Family First Coronavirus Response Act (FFCRA). The Department has not published a model leave form for use with the FFCRA. To help fill in this gap, Franczek has prepared a guide to administer leave under the FFCRA, including a model policy, leave form, and a detailed Q&A guide to evaluating leave requests.

The updated FMLA forms include the following:

•    Eligibility and Rights and Responsibilities Notice, Form WH-381
•    Designation Notice, Form WH-382
•    Certification for Employee’s Serious Health Condition, WH-380-E
•    Certification for Family Member’s Serious Health Condition, WH-380-F
•    Certification for Qualifying Exigency, WH-384
•    Military Caregiver, Leave of Current Servicemember, WH-385
•    Military Caregiver, Leave of a Veteran, WH-385-V

The Department has not updated the “General Notice” poster, which employers are required to post in each workplace and distribute to employees with their written leave guidance (e.g., as part of an employee handbook) or individually upon hire.

In a Q&A section on its website, the DOL states that employers may continue to use the Department’s prior model forms, and may also use their own forms so long as they contain the same basic information and do not ask employees to provide information beyond that specified in the FMLA regulations.

The new forms do seem to offer some improvements over the prior DOL model forms, though they are not perfect. For example, the Eligibility and Rights and Responsibilities Notice, WH-381, seems to have omitted a check box next to the option to request documentation of an employee’s family relationship in Section II of the form. Consequently, employers that use their own FMLA forms may wish to continue doing so, though they should consider whether to update their forms to more closely track the new DOL model forms.