Guest Post by Allen Smith, J.D.
The Family and Medical Leave Act (FMLA) forms expire June 30—not on their original expiration date of May 31—but aren't likely to change when they're replaced with new forms, experts say.
Employers who customize their own forms aren't too concerned with the imminent replacement of the current forms, while employment law attorneys disagree on how much the DOL forms might be tweaked.
The FMLA forms are used to certify that an employee is eligible to take FMLA leave and to notify him or her of leave rights under the law. The forms expire under the Paperwork Reduction Act of 1995, which requires the Department of Labor (DOL) to submit its forms at least every three years to the Office of Management and Budget (OMB) for approval, so the OMB can ensure processes aren't too bureaucratic.
The DOL is renewing the current FMLA forms on a month-to-month basis until it replaces them with new forms. But the new forms may be virtually identical to the current ones and have a different expiration date, according to Jeff Nowak, an attorney with Franczek Radelet in Chicago.
In 2015, the DOL made a few minor tweaks to the FMLA forms so they would conform with the Genetic Information Nondiscrimination Act.
This cycle, the DOL did not request any changes to the forms, Nowak said.
There have not been substantive changes to FMLA or its regulations in the past three years that would require changing any of the information provided or sought on the current forms, noted Tina Bengs, an attorney with Ogletree Deakins in Indianapolis and Valparaiso, Ind., and Chicago. So it seems likely that the new forms, once issued, will be approved for the maximum three-year period, she predicted.
Customization of Forms
Some employers customize the DOL-recommended forms for their own use, observed Steven Bernstein, an attorney with Fisher Phillips in Tampa, Fla. For example, some employers are covered by state and federal FMLAs and adjust the federal forms to reflect state law requirements. Others make minor changes, such as referring to workers as "associates" rather than "employees."
On occasion, employers incorporate reference to their accrued leave policies, while others adopt robust language disclaiming liability under the FMLA, he said.
He cautioned, however, that an employer can be held liable for using a form that harms the employee by misleading him or her about FMLA rights, and recommended that any changes be reviewed by an outside expert to ensure that added language does not inadvertently conflict with the FMLA.
Monica Velazquez, an attorney with Clark Hill in Collin County, Texas, prefers customized forms so that employers aren't handing workers documents with the DOL logo. The logo makes the forms look more official than they are, she said, emphasizing that their use is optional.
Copy and paste the information from the DOL form into the employer's own form, she recommended. If the employer plans to use its own language, use plain English and bullet points, she said. "Keep things as direct as possible."
"I think the forms should have less space for health care providers to handwrite information," said Megan Holstein, a senior vice president of absence and disability with Fineos in Denver. For example, instead of an open-ended question about the employee's treatment schedule, a customized FMLA form might ask the doctor to choose a frequency of treatment—every week, month or year—and circle the response. This would reduce the challenge of reading doctors' often illegible handwriting, she explained. Less space for handwritten information also would reduce the chances of doctors' filling certification forms with confusing medical lingo, she added.
Many employers put the information about health conditions at the top of the medical certification forms, as it's the first piece of information the employer wants—what ails the employee or family member—so the employer has a better sense of whether the employee is covered by the FMLA, Nowak noted. Nevertheless, he said he doesn't have many concerns with the FMLA forms and encourages clients to use them.
The current DOL forms are:
§ Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385-V).
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