Same as It Ever Was—WHD Issues “New” FMLA Forms

On September 4, 2018, the U.S. Department of Labor’s (DOL) Wage and Hour Division released a new set of Family and Medical Leave Act (FMLA) notices and certification forms. These forms include the Notice of Eligibility, Designation Notice, and Certification of Health Care Provider. The forms are available on the DOL’s website.

Although the previous forms expired in May 2018, the DOL had extended them on a month-by-month basis until the Office of Management and Budget (OMB) approved the new forms. Despite the long wait, the new versions’ only difference is that the forms’ expiration date in the upper right-hand corner is now August 31, 2021. Otherwise, the content is identical to the forms that the OMB approved in 2015 and that many employers have been using.

Under the FMLA, employers may use their own FMLA forms instead of the DOL’s forms. If employers use their own paperwork, though, the forms must use clear, easily understood language, and they must not include any information that conflicts with the FMLA.

In most states, employers can use the revised DOL forms as released. However, if state or local family, medical, or other protected leave laws provide employees with greater or different rights and/or obligations than does the FMLA, employers may need to edit or supplement the DOL forms before using them. For example, in California, employers can either modify the DOL medical certification form so it complies with the California Family Rights Act (CFRA) or use the state’s model CFRA medical certification form, available at www.dfeh.ca.gov. Other jurisdictions also may have prepared model forms for employer use.