Focus on Revised FMLA Regulations: Revised Notice and Certification Forms

I have received a number of requests for a link to the Department of Labor's new Notice and Certification Forms.

Under the "Additional Information on the Final Regulations" section of the site, you will find the following forms developed by the Department of Labor: 

  • 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-381 Notice of Eligibility and Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency for Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave

Generally, using the Department of Labor's forms creates a "safe harbor" for employers.  Assuming that the employer completes the forms correctly and otherwise complies with the applicable notice requirements set forth in the Regulations, the employer will not be liable for an FMLA violation premised upon a failure to provide adequate notice and/or request an appropriate certification. 

That said, I recommend that employers have their legal counsel review, in particular, their Notices of Eligibility and Rights and Responsibilities and Designation Notices to ensure that they are completing them in a manner consistent with the Revised FMLA Regulations and their company's practices and policies.  Each form has a number of options which the employer must select in order to complete the form.  For example, the employer will need to notify the employee requesting leave of any accrued paid time off that will be substituted for unpaid FMLA leave time, and how benefit payments will need to be made.  Moreover, if, for example, the employer fails to notify the employee of the need to provide a fitness-for-duty certification, or that the employee is considered a "key employee", the employer will not be able to elect those options at a later date. 

I will be explaining each of the forms in more detail over the next few weeks.  Please check back for additional guidance regarding the various pitfalls to avoid when completing the new forms.