New Certification Forms for FMLA

The Department of Labor's (DOL’s) final rules provide several new forms for different kinds of FMLA leave and change some medical certification rules.

In both the preamble to the proposed FMLA rules and its analysis of the final rules, the DOL noted that it has received feedback that the current certification WH-380 “is confusing and could be improved.”

The final rules, which takes effect Jan. 16, 2009, splits the optional certification Form WH-380 into two separate optional forms, one for the employee’s own serious health condition (Form WH-380-E) and one for the serious health condition of a covered family member (Form WH-380-F).  The new forms clarified that an employer may provide a statement of the employee’s essential functions to the employee’s health care provider when the employer requires certification.

Form WH-384

The final rule adds a sample qualifying exigency certification form (Form WH-384), which reflects the certification requirements in order for an employee to support his or her request for leave because of a qualifying exigency.

The National Defense Authorization Act (NDAA) amended the FMLA to allow eligible employees of covered employers to take FMLA-qualifying leave because of any qualifying exigency arising from the fact that a spouse, son, daughter or parent of the employee is on active duty or has been notified of an impending call or order to active duty in the Reserve or National Guard.  The final rule clarified that this NDAA provision applies to a federal call to active duty, not a state call to active duty.

The NDAA also provided that an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered, wounded service member is entitled to a total of 26 workweeks of leave during a single 12-month period to care for the service member, which the final rule says includes current members of the Regular Armed Forces as well as current members of the National Guard or Reserves.

Form WH-385 and Military Caregiver Leave

The final rule adds a new optional form (Form WH-385) for an employee to support a request for leave to care for a covered service member with a serious injury or illness.

The DOL determined that the “single 12-month period” for military caregiver leave would begin on the date an employee first takes leave to care for a covered service member with a serious injury or illness.  The DOL said that applying the normal FMLA leave year to military caregiver leave might result in employees being unable to use their 26-week entitlement if the employee’s first use of leave did not coincide with the beginning of the employer’s FMLA leave year.

The DOL recognized “the concerns expressed by employers and human resource professionals regarding the complexity and administrative burden of tracking leave under two different 12-month leave periods.  However, the department does not believe that the potential administrative burden caused by a relatively short period of overlapping 12-month periods outweighs the possibility that other approaches might diminish an eligible employee’s entitlement of up to a full 26 weeks of military caregiver leave.”

Employers had hoped that the “single 12-month period” would be interpreted as meaning that an employee could use the 26-week military caregiver leave only once.  But the final rule provided that an eligible employee may take up to 26 workweeks of military caregiver leave in any single 12-month period per service member, per injury.  This means that an eligible employee may take 26 workweeks of leave to care for one covered service member in a “single 12-month period” and then another 26 workweeks of leave in a different “single 12-month period” to care for another covered service member or to care for the same covered service member with a subsequent serious injury or illness.

Monitor Leave Abuse

The language of the Form WH-380E instructs health care providers to be as specific as they can and notes that such terms as “lifetime,” “unknown” and “indeterminate” might not be sufficient to determine FMLA coverage.  And the form permits employers to get a diagnosis which employers could not get under the old regulations.

The new notice of eligibility and rights and responsibilities (Form WH-381) reflects that employers now must designate leave as FMLA within five business days of the employee notifying the employer of the need for FMLA leave, rather than two days.

Employers can require employees to follow their notice call-in procedures.  Another important new provision in the final rule lets HR professionals contact an employee’s health care provider to authenticate or clarify a medical certification, if the employee is first given the opportunity to cure any deficiencies in the certification.