Earlier this month, the Department of Labor issued final new rules regarding the amendments to military family leave, flight crew eligibility and a handful of other relatively minor issues. At the time, I covered those changes at some length here.
Perhaps a bit lost in the changes to the regulations, however, is the obligation to begin using updated FMLA notice and certification forms and to post the new FMLA poster, effective March 8, 2013.
Notably, the DOL’s model forms will no longer be included as part of the appendices to the regulations. Instead, they will be available on the DOL website. This allows the DOL to make changes to the forms without having to approve every change through the federal government’s Office of Management and Budget. [Read: bureaucracy] A new certification form related to the serious injury or illness of a covered veteran also was created.
The new regulations also confirm employers’ confidentiality obligations under the Genetic Information Nondiscrimination Act of 2008 (GINA). The DOL indicated in its final rule that GINA allows employers to disclose genetic information or family history obtained by the employer so long as it is consistent with the FMLA. Nevertheless, the DOL did not propose adding any GINA safe harbor language in the new forms. In a prior post, we recommended GINA safe harbor language for employers to include in medical certification.
Although employers can safely use the new FMLA forms, they also may adapt the DOL’s version in creating their own forms, so long as these forms do not require the employee or health care provider to disclose more information than what is required by the FMLA regulations. For those employers who have created their own forms, it is critical that you update your forms by March 8 to account for the changes in the final rules.
At a minimum, I would recommend that employers review the forms closely with their employment counsel and tweak certain portions. For example, in the updated Notice of Eliigibility (Part A), as to qualifying exigency leave, the DOL does not indicate that the call to active duty involves a deployment to a foreign county, which is a critical part of the leave entitlement. This phrase should be added; otherwise, employees are likely to be confused about the entitlement.
Where can you find the new FMLA forms and poster? Here you go:
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition(pdf)
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (pdf)
- WH-381 Notice of Eligibility and Rights & Responsibilities (pdf)
- WH-382 Designation Notice (pdf)
- WH-384 Certification of Qualifying Exigency For Military Family Leave (pdf)
- WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave (pdf)
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (pdf)
Still trying to figure out exactly what changed under the new rules?