January 07, 2021 New U.S. DOL Family and Medical Leave Act (FMLA) Forms Reminder
KEEPING YOU INFORMED…
We are writing to remind you that the U.S. Department of Labor (DOL) has released new electronic signature FMLA forms. The new forms, which continue to be optional, include a two-step process intended to ensure the capture of all required information and make the FMLA process “easier to understand.” Employers may still use your own forms, as long as they contain the “same basic notice and require only the same basic certification information” as required by the FMLA. The forms are also available as PDFs, which are electronically fillable, for contactless completion.
While the old FMLA forms do not expire until August 31, 2021, the new forms may immediately be used and will remain valid through June 30, 2023. Examples of some of the noticeable revisions to the new forms and links to access them are provided below.
Notice of Eligibility and Rights and Responsibilities
• Form WH-381 combines two prior stand-alone forms, “Eligibility Notice” and “Rights and Responsibilities Notice.”
• The old form included a list of employee responsibilities followed by a list of employee rights, which required the user to go back and forth between the two lists to gather information on any one topic. The new form, under the “Notice of Rights and Responsibilities” section, organizes all of the information under seven parts (A-F), each with its own heading (e.g., “FMLA Leave Entitlement”), allowing users to find the information relevant to each particular topic in one location on the form.
• The “Notice of Eligibility” section now provides descriptions of the eligibility rules and defines key terms, such as “spouse,” “parent” and “child.”
• The “Additional Information Needed” section now details the categories of information that the employer is requesting to help determine if an absence qualifies for FMLA leave, such as which additional certifications are needed or a statement to establish a family relationship.
• The “Employer” section of Form WH-382 now provides checkbox options for the employer, making it easier to select the reason for which the employee is requesting FMLA leave, whether the employee’s FMLA request has been approved, and whether additional information is needed.
• The “Additional Information Needed” section now includes a section regarding “Incomplete or Insufficient” medical certifications and provides space for the employer to explain what information is still needed from the employee and by when that information must be submitted.
• The “FMLA Leave Approved” section now specifies the employee’s leave entitlement, including information regarding return-to-work requirements.
• Forms WH-380-E and WH-380-F now request more detailed information from the employee or family member’s health care provider, such as:
• A “best estimate” of the type and amount of leave needed for future treatment (e.g., planned medical treatment on specified dates).
• Requiring greater specificity in the explanation of the duration of incapacity. The new forms also advise healthcare providers that simple statements, such as “lifetime,” “unknown,” and “indeterminate,” may not be enough to determine an employee’s FMLA eligibility.
Certifications for Military Family Leave
• The “Qualifying Exigency” certification form now provides checkbox options narrowing down the scope of options for the type of leave, amount of leave, and schedule of leave.
• The “Military Caregiver Leave of a Current Servicemember” certification form now also provides checkbox options for the type of care being provided, the seriousness of the relevant injury or illness, and the amount of leave needed.
These new FMLA forms may provide you with a more structured, defined and efficient process for administering FMLA leaves of absence than your current ones.
If you have any questions regarding the DOL’s new FMLA forms, or would like an FMLA “refresher” training in light of the new forms, please contact Alyssa Zuckerman, Michelle A. Mahabirsingh or one of our other attorneys by calling 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
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© Lamb & Barnosky, LLP 2021
 Notice of Eligibility and Rights and Responsibilities Form WH-381, available at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-381.pdf.
 Designation Notice form, available at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-382.pdf.
 Medical Condition forms, available at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-380-E.pdf and https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-380-F.pdf.
 Certification for Military Family Leave forms, available at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-384.pdf, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-385.pdf and https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh-385-V.pdf.