Contrary to popular opinion, the biggest news lately out of the U.S. Department of Labor is not the fact that the agency just this week announced a final rule that would make over one million American workers newly eligible for overtime pay.

Oh, no way!

Why worry about minimum wage and overtime issues when the big news is forms? FMLA forms, that is.

Brand. New. FMLA. Forms.

In early August, the DOL published proposed new FMLA notices and medical certification forms, and asked the public to offer its feedback on these new forms by October 4, 2019. That deadline is one week from today.

This news is so big it’s taken me over seven weeks to tell you about it.  [Ummm, sorry.]

According to the DOL, these new forms effectively do the following:

  • Require fewer questions requiring written responses; replaced by statements that can be verified by simply checking a box
  • Reorganization of medical certification forms to more quickly determine if a medical condition is a serious health condition as defined by the FMLA
  • Clarifications to reduce the demand on health care providers for follow-up information
  • Provide more information on the notification forms to better communicate specific information about leave conditions to employees
  • Layout and style changes to reduce blank space and improve readability

What do I think of the new forms? Why don’t I answer this question with a memory you might relate to.

Let me take you back for a moment to our childhood. You remember those days, right? The days long before iPhones and Fortnite, when we’d spent the whole doggone day playing outdoors with our neighborhood friends. After a long day outside and having accrued 40,000 steps on our imaginary fit bit, mom would yell down the block to us, “Dinner’s ready.” Reluctantly, we’d traipse back home. As we got closer to the front door, though, our hunger took over and we were ready for dinner. But in that moment, we’d pray that mom wasn’t making the same thing we ate last night — hamburger helper.

As we entered the house, the smell gave it away. Nope, it wasn’t hamburger helper, but its close cousin — tuna helper. In the end, the look was slightly different, but with all due respect to Betty Crocker, it still had the same ‘ol processed taste just like the night before.

I view the proposed FMLA forms the same way. In a nutshell, they are a very modest transition from hamburger helper to tuna helper: tweaked around the edges, but still effectively the same meal.

Now that you have that delicious thought in your heads, let me share my thoughts really quick before that October 4 deadline passes (if you even care to read further):

What’s GOOD about the forms?

  • Font size is larger, which helps a guy who recently had to start wearing reading glasses!
  • There definitely are more boxes for ease of use, and streamlining can be good. The proposed forms include fewer questions that require a written response. Instead, these questions are replaced with statements that require the health care provider simply to check a box if the health care provider believes the statement applies. But the use of boxes is fraught with problems. See “Challenges” section below for my take on the new boxes.
  • Coverage of current and future treatment: As Abby O’Connell, senior counsel at Sun Life Financial, pointed out in this recent SHRM article, the new forms appear to do a better job at requiring that the physician provide substantive information about future treatment, which often is left out of the current forms.  Abby put it this way:

Under the current forms, the health care provider is not encouraged to explain future inpatient status or future treatment.  Contemplation of future treatment is critical, since employees are required to report leave at least 30 days in advance when the need for leave is foreseeable.  The revised forms also capture information to support leaves taken for chronic conditions and permanent or long-term conditions, while the existing forms do not.

  • Have I mentioned that font size is larger?

What are the CHALLENGES with the forms?

  • What the boxes giveth, they taketh away. On first thought, what’s not to like about boxes? They’re nice and square, and on a most basic level, they simplify things.  But here are my two beefs with the DOL’s boxes:
    • The main portion of the proposed medical certification form consists of a series of boxes associated with a “serious health condition” or pregnancy that the health care provider simply needs to “check.” This particular section leads the physician to conclude that he/she is obligated to check one of the boxes so as to confirm that the employee or family does indeed have a serious health condition.  In other words, simply checking a box causes the doctor to make a legal conclusion rather than provide actual medical facts to allow the employer to make the ultimate determination as to whether the absence is covered by the FMLA.
    • If the physician simply checks a box associated with one of the serious health conditions presented, it is possible that the actual medical facts supporting the need for leave are never addressed in the form. As a result, the employer doesn’t know what the heck is going on with the employee and, so long as a box is checked, the employer may not be able to question the condition through the clarification process or otherwise.
  • At times, the medical certification form can be a bit confusing, asking the physician to confirm whether the employee “was” or “will be” incapacitated for a period of time. These requests will invariably lead to inconsistent and confusing responses from the health care provider.
  • Requiring that the employee’s name be written at the top of every page of the medical certification. Where are we? The 3rd grade?  Let’s save everyone the extra work and cut that requirement out.

Changes that make you simply shrug your shoulders, right? I’ll save my excitement for the DOL’s impending request for information asking for input on what regulations we’d like to change.

In the meantime, enjoy an extra helping of hamburger helper.