The U.S. Department of Labor (DOL) has announced that its Family and Medical Leave Act (FMLA) certification forms and notices are valid for three more years, until Aug. 31, 2021. (The DOL must submit its FMLA forms to the Office of Management and Budget for approval every three years to ensure the FMLA certification and notice process isn’t too bureaucratic.)
In late August 2018, seven forms were certified. The DOL didn’t make any substantive changes to the forms, other than to announce the new expiration date. A list of the forms, with links to them on the DOL site, is available at the end of this article.
Must Employers Use DOL Forms?
Use of DOL forms for FMLA (and many other needs) is not mandatory, although it is perfectly acceptable. There are two schools of thought regarding whether a DOL form should be used as is, with DOL identification as the sole branding.
- Some experts caution against copying (or scanning) and using DOL forms directly for FMLA certifications and other issues. They look formal, which many employers may perceive as a benefit. However, they do not allow for organizations to add other important information, and they can be confusingly similar in organizations that have a number of divisions or departments, each of which retains its own forms.
- On the other hand, “adapting” DOL forms to a company-branded template can be dangerous, especially if personnel attempt to modify or paraphrase the DOL form language to save space or for any other reason. If an employer inadvertently misleads an employee about their rights by revising DOL text – especially if they request more information than the DOL requires on a form such as a Medical Certification, they could be held liable for violating DOL requirements.
A reasonable compromise, and one that is allowed, is for employers to scan the DOL forms in their entirety and paste them into their own templates, which could be branded with the company logo and contain additional input areas for department or location names and other identification. It is also fine for organizations to add introductory or declarative language specific to the employer, such as to whom forms should be submitted, company rules for updating supervisors and other management, and other company-specific items. Many organizations put this information on a cover page separate from the DOL-sanctioned form areas. Even then, companies should keep the language direct and easy to understand, using bullet points where appropriate to increase ease of use and comprehension.
Where Employer Involvement Matters Most
Complete and authentic FMLA medical certifications are essential to prevent abuse of intermittent FMLA leave, and this is where corporate engagement is most important. Form validation should be handled by an HR specialist (either in-house or a third-party HR provider) who knows which medical authorities can provide the certifications, what professional licensure they must possess and what information must appear in the documentation.
Doctors aren’t the only health care providers who may certify FMLA leave. Podiatrists, dentists, clinical psychologists, optometrists and chiropractors can all certify leave, as can nurse practitioners, nurse-midwives, clinical social workers and physician assistants. Each of these providers must be licensed to practice in the state.
Companies should also retain copies of all records relating to medical conditions or injuries, including medical leave requests, for at least three years after the incident, even if the worker leaves the firm’s employ. Note that the FMLA record-keeping requirements, as reflected in 29 C.F.R. § 825.500, require employers to keep and preserve records in accordance with the Fair Labor Standards Act (FLSA), which also states no less than three years.
The forms and notices recertified by the FMLA in August 2018 are:
Certification of Health Care Provider for Employee’s Serious Health Condition (Form WH-380-E).
Certification of Health Care Provider for Family Member’s Serious Health Condition (Form WH-380-F).
Notice of Eligibility and Rights & Responsibilities (Form WH-381).
Designation Notice (Form WH-382).
Certification of Qualifying Exigency for Military Family Leave (Form WH-384).
Certification for Serious Injury or Illness of Current Servicemember—for Military Family Leave (Form WH-385).
Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Form WH-385-V).