On July 16, 2020, the Wage and Hour Division of the U.S. Department of Labor (DOL) published new efforts to improve management of leave under the Family and Medical Leave Act of 1993 (FMLA).
These developments follow a series of changes to the FMLA since its enactment in 1993. The DOL issued an initial interim final rule in 1993, after the FMLA first became law. Final FMLA regulations followed in 1995. In 2008, following a request for information, the DOL published significant revisions to the 1995 FMLA regulations. In 2013, the DOL updated the regulations to “implement statutory amendments affecting military family leave provisions and airline flight crew eligibility.” The DOL last updated the regulations in 2015 to update the definition of “spouse.”
On August 5, 2019, the DOL sought “public comment on proposed revisions to optional-use FMLA forms.” The public comment period garnered “139 comments from employers, industry associations, individual employees, worker advocacy groups, law firms, and other interested members of the public.” On July 16, 2020, following the public comment period, the DOL issued improved optional-use FMLA forms for notification of eligibility for, certification of, and designation of leave under the FMLA. The new forms are available on the DOL’s website. As with prior versions of the forms, employers are not required to use DOL-issued forms.
Among other improvements, including an electronic signature to reduce contact, the revised FMLA certification forms—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-384 (Certification for Military Family Leave for Qualifying Exigency), and WH-385—identify the deadline by which to return the certifications, provide definitions of continuing treatment and qualifying family members, and categorize information based on the type of underlying continuing treatment for serious health conditions and qualifying exigencies. Among other improvements, the revised notice of eligibility form, WH-381, identifies the hours of service worked towards the 1,250-hour minimum service requirement under the FMLA, includes an option for ineligibility for failure to meet the service eligibility requirements for airline flight crew employees, and provides more robust information regarding the substitution of paid leave. The revised designation notice form, WH-382, similarly provides more robust information regarding the substitution of paid leave.
In addition to publishing improved optional-use forms, the DOL published in the Federal Register a request for information on July 17, 2020, seeking public input regarding the regulations implementing the FMLA. Written comments, which may be submitted electronically or by mail, are due by September 15, 2020.
The request for information seeks input on one discrete topic from the vantage point of both employees and employers: “What would employees [and employers] like to see changed in the FMLA regulations to better effectuate the rights and obligations under the FMLA?” The request for information does not seek comment on the Families First Coronavirus Response Act (FFCRA), which includes temporary amendments to the FMLA that are scheduled to expire on December 31, 2020.
To better frame responses, the DOL poses the following questions in the request for information:
- “What, if any, challenges have employers and employees experienced in applying the regulatory definition of a serious health condition?”
- “What, if any, specific challenges or impacts do employers and employees experience when an employee takes FMLA leave on an intermittent basis or on a reduced leave schedule?”
- “What, if any, specific challenges do employers and employees experience when employees request leave or notify their employers of their need for leave?”
- What, if any, challenges have employers and employees experienced with the medical certification process that are not addressed by the DOL’s proposed revisions to optional-use FMLA forms?
- Following a series of DOL opinion letters, what additional guidance would be helpful to employers and employees regarding (1) the compensability of frequent rest breaks necessary due to a serious health condition, (2) the application of a no-fault attendance policy during FMLA leave, (3) whether organ donation qualifies as a serious health condition, (4) delayed designation of FMLA leave, (5) the accrual of seniority when FMLA leave is substituted for paid leave, (6) attendance at a child’s Individualized Education Plan meeting as a qualifying reason for intermittent FMLA leave, and (7) calculating the number of employees to determine eligibility for FMLA leave in combined general health districts?
The improved optional-use forms present an excellent opportunity for employers to review their FMLA processes and further educate their employees on rights and obligations under the FMLA. The request for information enables employers and other members of the public to provide additional feedback to the DOL regarding challenges and best practices when administering FMLA leave.