Since its inception, the Family and Medical Leave Act (FMLA) has been a confusing and difficult piece of legislation to manage. One element that vexes employers nationwide is when to use each of the Department of Labor (DOL)'s forms, and for what purpose.That’s where we come in. While we'll discuss when and how to use these forms, several key points must be made first:
- The DOL forms are recommended for use with the FMLA, they are not mandated. Meaning, you are not required to use the DOL forms, though you must comply with the notice requirements under the FMLA; which, at a minimum is what the DOL forms are meant to assist with.
- While collecting and distributing the information contained in the DOL forms generally represents a good best practice, national employers need to be aware that not all of the information on the forms can be solicited and some of the information communicated to employees in certain states can run counter to specific legislation in those states. California's privacy legislation, for example, is much more restrictive on the type of information that a healthcare provider can disclose to an employer regarding an employee's serious health condition.
- The employer's obligation is always to comply with all legislation within the jurisdictions where they operate, not necessarily specific forms.
- Also, remember that once you modify the DOL forms, you may not refer to or distribute them as the DOL forms.
Are you up-to-date with the DOL's 2019 opinion letters?
Though this is by no means an exhaustive list, we’ve put together a ‘Crash Course’ that will help you understand FMLA forms a little better. Getting a handle on these forms will help you boost your legal compliance, and save time and effort. What do you think? Are you ready to put the A+ in the FMLA?
Your Obligations at a Glance:
To give you a taste of what's required of you as an employer, take a look at the following infographic. Of course, first things first, you must determine if you’re an employer covered under the FMLA. Then follow the process of determining if your employee is eligible for leave:
We hope that this infographic will help you begin to understand what your obligations are as an employer. Please feel free to download a PDF version of this infographic for later reference, simply by clicking on the infographic itself, or by clicking here.
Now let's dig into the forms...
Form #1: General Notice
Once you’ve determined if you’re a covered employer, you must follow the general notice requirements. The DOL, provides a free poster which you can use for this notice. It must be displayed in plain sight for all workers and applicants, with the information also being placed in the employee handbook. If you don’t have a handbook, the information must be given to all new hires.
You don’t have to use the DOL’s poster, but if you decide to design your own, make sure it has all of the necessary information on the DOL’s poster, at a minimum.
Failure to comply could mean a penalty of $110.00 per offense. $110.00 versus a free poster? Seems like an easy decision!
Form #2: Notice of Eligibility and Rights & Responsibilities
Upon the first instance of a leave request for a FMLA qualifying reason, an employer must issue an eligibility notice. Each subsequent request for a different FMLA qualifying reason also creates an obligation for the employer to provide an eligibility notice.
Remember that all subsequent leave taken for the same reason within 12 months of the first instance must be treated as the same leave, and therefore an employer must maintain the eligibility determination until the anniversary of the start of the first instance.
If you’re using the DOL’s forms, this is form number WH-381. That said, you also have the option of making this a verbal notice, so long as it’s within 5 business days of being notified of the need for a leave that qualifies under the FMLA. You must always communicate whether an employee is eligible, and include at least one reason why they are not eligible, if applicable.
Additionally, in this form you will be informing your employee of their rights and responsibilities under the FMLA regulations. Within this, you should state explicitly:
- That the leave will be counted as FMLA, if it’s a qualifying event and the employee is eligible.
- Any information required to determine eligibility under FMLA (usually the medical certification, but may also include things like a relationship attestation, proof of birth or adoption, etc.).
- Define the entitlement calendar year and how you will determine the 12 month period for entitlement purposes.
- The time period you require for your employee to return their medical certification (remember, it must be a reasonable period under the law and at least 15 days).
- The right to job restoration and the maintenance of employee benefits (and include information on how to manage their premium payments to maintain the benefits throughout leave).
- Indicate if the employee will be designated a key employee and the details of what this means.
- Specify fit for duty requirements, by providing a description of the essential functions of the employee’s job, as well as any other requirements considered in the Fitness for Duty assessment. In this case, employers are usually seeking a medical release from the employee’s health care provider that declares the medical issue for the leave is resolved.
- And finally, you must outline the employee's rights, requirements or options to use paid leave while on FMLA or state protected leaves. Be careful here as FMLA does not establish any criteria around the use of paid leave, only that whatever your policy, you must communicate it in the eligibility notice. Some states and leave types actually prohibit employers from forcing employees to use their paid leave while on unpaid leave.
Form #3: Designation Notice
Now that you’ve had the time to determine if your employee is eligible for FMLA or not, and it’s time to communicate that to them. You can do this through form WH-382. This designation notice must be written, and provided within 5 business days of the date in which you have enough information to determine if the leave is for an FMLA-qualifying reason, and within 5 business days of any change to the circumstances of the leave. If you are approving them for the FMLA, provide a breakdown of the amount of leave which will be counted against their FMLA entitlement, and include any requirements you have for substitution of paid leave or fitness for duty examinations. If you’re denying the leave, you must provide at least one reason as to why.
Form #4: Medical Certification
You now have the option of requiring your employee to provide you with a medical certification. This can be done through form WH-380E. Though this is optional, it is recommended that you require these certifications. You also have the right to request a second or third medical opinion on your own dollar if you have any doubts as to the authenticity of the medical certification. Just remember, you must apply your conditions consistently; if you require the medical certification in one case, it must be required in all similar cases. You cannot have requirements for taking FMLA leave that are inconsistent with taking other similar leaves within your organization. This is also a great tool for mitigating FMLA abuse.
Need some extra help with medical certification forms? Check out this blog post.
While this is an overview of the various forms required for managing the FMLA, it is by no means an exhaustive list! Adopting an FMLA software solution could make a world of difference when it comes to managing the various forms involved in the FMLA! Presagia’s leave management system includes the forms and letters to manage more than 35 events in the lifecycle of a leave - from the initial notice to return to work. They’ve been designed to auto-fill with all necessary information, saving employers valuable time. Here are a few more reasons to make the switch:
- Our sophisticated compliance engine gives you access to over 450 pieces of federal, state and municipal FMLA leave legislation that are continuously updated to keep you in the clear.
- Seamless integration allows you to integrate your HR system into Presagia to reduce double-entry of employee information!
- Our system contains sophisticated reports and analytics that allow you to glean a greater understanding of employee trends, case workload, costs and current leave cases!
Ready to see more?
Founded in 1987, Presagia has a long history of helping organizations solve complex business problems with easy-to-use solutions. Today, this means providing cloud-based absence management solutions that enable organizations to be more efficient, control lost time and risk, and strengthen compliance with federal, state and municipal leave and accommodation laws.