Memorial Day 2015 – Parades, Flags and new FMLA Forms!

By: Jacqueline B. Jones

If you are a business owner or human resources manager with over 50 employees, you have likely been using Family Medical Leave Act (“FMLA”) forms which had an expiration date of March 31, 2015. The U.S. Department of Labor (“DOL”) issued new forms over this past 2015 Memorial Day weekend, with an expiration date of May 31, 2018.

Why are new FMLA forms issued so often?
Every three years the Office of Management and Budget (OMB), pursuant to the Paperwork Reduction Act of 1995 must review the DOL’s information requests contained in the FMLA forms and the time employers spend responding to the requests. OMB’s last review and approval of the FMLA forms occurred in early 2012 for the maximum period of three years. When those forms expired, originally on Saturday, February 28, 2015, the DOL issued a series of extensions allowing employers to continue to use the forms while the OMB reviewed the forms again.

What changed?
Very little has changed with the new FMLA forms. You will notice that the forms now have an expiration date of May 31, 2018 and also state in the lower right-hand corner that they are revised May 2015. Substantively, there is one change to the Health Care Provider Certifications for Employees and their Family Members relating to information employers are prohibited from having under the Genetic Information Nondiscrimination Act (“GINA”). One the Employee Health Certification, Form WH-380, p. 1, the following phrase is added:

Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).

A similar prohibition is contained on the family member health certification form, Form WH-380-F, p.2. This prohibition on providing GINA prohibited information is a good start, but we still recommend employers add a longer disclaimer and you can find that disclaimer that I recommended in a previous blog post.

Are employers required to use the FMLA forms?
Employers are not required to use the FMLA forms. Most do however. They are a good resource for many employers as the information the FMLA allows employers to ask is very detailed and an employer can be sure that they are not inappropriately requesting information if they use the DOL FMLA forms.

Is the FMLA driving you crazy?
Employers that feel like they have no control over the FMLA leave process can learn to utilize the DOL FMLA forms effectively to ensure employees are using leave appropriately. Look for my next blog post on strategies to combat FMLA abuse.

The following are links to the new forms (PDF):

  • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH-381 Notice of Eligibility and Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency For Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Covered Service Member — for Military Family Leave
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

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