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New FMLA Forms 2020

New FMLA Forms for 2020

On July 16, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) released revised Family and Medical Leave Act (FMLA) optional-use forms. Unlike the last revisions, there are tangible changes this time. Employers may begin using the new FMLA forms now.

Streamlined Forms

The DOL emphasized that the new forms are more streamlined and user-friendly:

“WHD’s new forms are simpler and easier for employees, employers, leave administrators and healthcare providers to understand and use. Revised with substantial public input, the forms include more questions that users can answer by checking a response box and electronic signature features to reduce contact. WHD believes the changes will reduce the time users spend providing information, improve communications between leave applicants and administrators and reduce the likelihood of violations.”

The following new FMLA forms are available through the DOL’s website:

  • WH-381: Eligibility Notice – This notice is used to inform an employee of their eligibility for FMLA leave or advise the employee of at least one reason why they are not eligible.
  • WH- 381: Notice of Eligibility & Rights and Responsibilities – This form advises an employee of their eligibility for FMLA leave or why they are not eligible. It also informs the employee of specific expectations and obligations associated with the leave request and the consequences of not meeting those obligations.
  • WH-382: Designation Notice – The form notifies the employee of the status of their FMLA leave request. It allows the employer to request additional information to process the application.
  • Certification of Healthcare Provider for a Serious Health Condition
    • WH-380-E: Healthcare Provider Certification for Employee’s serious health condition.
    • WH-380-F: Health Provider Certification for Employee’s Family member with a serious health condition.
  • Certification of Military Family Leave
    • WH-384: Qualifying Exigency – Use this form when a leave request is related to the deployment of the employee’s spouse, son, daughter, or parent.
    • WH-385: Military Caregiver Leave of a Current Servicemember – Use this form when an employee is requesting leave to care for a family member who is a current service member with a serious injury or illness.
    • WH-385-V: Military Caregiver Leave of a Veteran – Use this form when an employee is requesting leave to care for a family member who is a covered veteran with a serious injury or illness.

Rationale Behind New FMLA Forms

The DOL provides these forms for optional use by employers. Though alternative forms may be used, employers must meet minimum legal notice requirements. The DOL forms are presumptively valid if employers use them properly.  The new electronically fillable PDF forms are designed to accomplish these objectives:

  • Further streamline the FMLA leave request, approval, and implementation process by making the forms more user-friendly.
  • Reduce the amount of time required to complete the forms.
  • Reduce the number of errors and violations associated with the request process.
  • Improve communications between the employee and employer.
  • Address some of the questions and concerns raised during the 60-day public comment period following the DOL’s release of draft forms in October 2019.

The DOL also added a Q&A section related to the new forms. Here, the DOL reiterates that employers are not required to use the new forms. But the documents they use must contain the same basic notification information and require the employee or healthcare provider to disclose only the information necessary to process the request. Thus, the DOL generally recommends that employers (and employees) use the new forms.

Look for More DOL Developments on FMLA

On July 17, 2020, the DOL published a Request for Information (RFI) seeking public comments on the effectiveness of the current FMLA regulations. This action indicates that the DOL is contemplating additional regulatory changes to the FMLA leave request process. The RFI includes examples of possible FMLA topics public comment. But it also permits comment on any other FMLA topic. Interested parties can submit comments by mail or electronically through September 15, 2020.

Employers should use this update as an impetus to review their current FMLA policies and procedures for compliance.

New FMLA Forms

New FMLA Forms (Technically)

If your organization has 50 or more employees, then it may have to deal with the federal Family and Medical Leave Act (FMLA). FMLA compliance involves paperwork. Employers must provide eligible employees prescribed notices and can require their workers to complete leave-request forms. The U.S. Department of Labor maintains sample forms that most covered employers use. The DOL recently updated its model FMLA forms, though in a minor way.

The FMLA grants eligible employees up to 12 weeks (26 in limited cases) of leave per year to use in several situations. These include personal or family member serious health conditions, birth/adoption of a new child, and certain military-related matters. What documents should you be using when these situations arise in your workplace?

What Changed on the FMLA Forms?

Ready for this? The date. That’s it. The expiration date to be precise.

In 2015 the DOL made several substantive revisions to the FMLA forms related to the Genetic Information Nondiscrimination Act (GINA). Those forms showed a May 31, 2018 expiration date. Since then, the DOL has been extending the expiration date on a month-to-month basis up to August 31, 2018.

Over Labor Day Weekend (ironically) the DOL finally issued new forms that don’t expire until August 31, 2021. But there are no substantive changes. Just a new expiration date.

Get the New FMLA Forms

Even though nothing meaningful has changed, you might as well use the new forms. If nothing else, it will avoid questions from employees about why you’re giving them “expired” paperwork.

Here are links to the new FMLA forms:

Notices

WH-381 Notice of Eligibility and Rights & Responsibilities
WH-382 Designation Notice

Certification forms

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-384 Certification of Qualifying Exigency For Military Family Leave
WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave
WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

Review FMLA Compliance

Since you’re already thinking about the FMLA now, it would be a good time to double check your organization’s compliance.

Here’s are some basics.

First, are you still covered? Have you dropped below the 50-employee threshold? Do you have any eligible employees? Among other criteria, an employee must work within a 75-mile radius of 50+ employees to personally qualify even if the company has 50 employees overall.

Second, are you providing the right documents to employees at the right times? Once an employee puts the company on notice of a possible FMLA situation, you must give them the notice of FMLA rights within 5 business days. You can either also provide the designation form or seek certification and then make a determination once the employee provides more information. Make sure you get the timing right either way.

Third, are you applying additional legal requirements correctly? Some states, like New York and California, have their own paid leave laws. These are not exactly the same as the FMLA and don’t necessarily apply under all of the same circumstances. Plus, the Americans with Disabilities Act and state disability discrimination laws might also extend leave entitlements as reasonable accommodations.

There’s much more to the FMLA. If you have questions or need more guidance, consult an experienced employment attorney.

 

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Paid Family Leave Request Forms

A Closer Look at the New York Paid Family Leave Request Forms

The New York State Workers’ Compensation Board has published several forms for use by employees making a paid family leave request. Employees will first be eligible for this leave beginning January 1, 2018. Here we’ll discuss forms and what they’ll mean for New York employers and employees.

If you’re just looking for the Paid Family Leave (PFL) forms themselves, you can find them here.

For more discussion about these forms and other PFL topics, check out this free webinar.

PFL Background

Under the New York Paid Family Leave Benefits Law, many employees across the state will be eligible for paid leave for these qualifying events:

  • Caring for a family member with a serious health condition.
  • Bonding with a child during the first 12 months after the child’s birth or placement for adoption or foster care, or to meet related adoption or foster care obligations.
  • “Qualifying exigencies” arising from a family member being on active duty or notified of an impending call to active duty in the U.S. Armed Forces.

Beginning in 2018, eligible employees may take up to 8 weeks of leave and receive up to 50% of their average weekly wage for any of these qualifying circumstances. By 2021, the benefits are scheduled to increase to 12 weeks of leave and up to 67% of the employee’s average weekly wage.

The pay component of the New York Paid Family Leave is an insurance benefit like the state’s short-term disability pay. Consequently, unlike the federal Family & Medical Leave Act (FMLA) where employers determine leave eligibility, the insurance carrier (or self-insured employer) decides whether employees qualify for New York Paid Family Leave.  This means that once employees complete leave forms, they will submit them to the insurance administrator for review and processing.

Insurers can use their own forms and allow telephonic or Internet reporting, but they must also accept the forms issued by the Workers’ Compensation Board.

Request For Paid Family Leave (Form PFL-1)

This is the generic form to be completed by any employee seeking New York Paid Family Leave. It has two parts. Part A is for the employee to complete. The employer completes Part B.

Part A

Part A start with basic information about the employee: name, address, social security number, date of birth, telephone number, gender, and preferred language. Then there’s an option section where employees can identify their race, for research purposes.

The next section of Part A gets into the basis for the paid family leave request. Specifically it asks about:

  • Reason for PFL request?
  • Which family member (by relationship, not name) is involved?
  • Will PFL be for a continuous period of time and/or periodic? (Including listing applicable dates.)
  • If providing less than 30 days’ advance notice to the employer, please explain . . . .

Finally, Part A ends with several items about the employee’s employment. Among these questions is whether the employee has more than one employer and whether they are also taking leave from another employer. It also asks whether the employee is receiving Workers’ Compensation Lost Wage Benefits. The employee must sign at the end of Part A declaring, essentially, that they have made no false statements in the form.

Part B

Like the employee’s part, the employer’s part of Form PFL-1 starts with a basic information section. The employer must fill out: business name, address, FEIN, SIC code, and contact information.

The employer also must provide information about the employee’s employment: date of hire, occupation, and wage data for the past 8 weeks.

Then Part B shifts to information about the employee’s paid family leave request:

  • Whether the employer is requesting reimbursement for wages it paid.
  • Whether the employee has received benefits for paid family leave or NYS disability in the past 52 weeks (with details).
  • Is the employee taking FMLA leave concurrently with PFL?

The FMLA question could be tricky. When the employer completes this form, it may not yet know whether it will grant FMLA leave. Ideally, the form really should ask, “Is the employee requesting FMLA leave concurrently with PFL?”

The employer must also provide the name and contact information for its insurance carrier.

At the end of the form, the employer must confirm that the employee is eligible for PFL based on their schedule and number of days worked. This does not necessarily mean the employee’s situation qualifies them for leave. The insurer will make that decision.

Bonding Certification (Form PFL-2)

This is the form for employees making a paid family leave request to bond with a newborn, an adopted child, or a foster child.

After entering personal information, the employee must fill out information about the child, including:

  • Date of birth
  • Gender
  • Whether the child lives with the employee
  • Nature of relationship (biological child, stepchild, foster child, adopted child, legal ward, or spouse/domestic partner’s child)

Then the employee must identify what type of documentation they are submitting. The instructions indicate that employees generally should not send originals.

Here are the possible forms of documentation:

  • Health care provider certification of pregnancy (original letter required)
  • Health care provider certification of birth (original letter required)
  • Birth certificate
  • Voluntary Acknowledgement of Paternity
  • Court order of filiation
  • Marriage certificate
  • Civil union/domestic partner’s documentation
  • Foster care placement letter
  • Court documents of adoption
  • Other documentation, if none of the others apply

Again, the employee must sign declaring that all information provided is accurate.

The employer does not complete any portion of this form.

Release Of Personal Health Information Under The Paid Family Leave Law (Form PFL-3)

By default, neither the employee requesting leave, nor the employer complete most of this paid family leave request form. Rather, the family member the employee will be caring for (or an authorized representative) must complete it. Of course, the employee may be the one to complete the form if they are an authorized representative, for example as the parent of the patient.

The purpose is to enable the family member’s health care provider to complete another form, providing information about the patient’s medical condition to the employee and the PFL insurance carrier.

The form specifies that the release only covers information related to the family member’s current condition that is the subject of the employee’s paid family leave request. Interestingly, the form doesn’t require the family member to identify which medical condition that is.

The employee can revoke the release anytime. Otherwise, it automatically expires after one year.

Health Care Provider Certification For Care of Family Member With Serious Health Condition (Form PFL-4)

The employee puts their personal information on the form and gives it to the family member’s health care provider along with the release authorization. Interestingly, the employee is supposed to include their own social security number and date of birth. Some employees might be reluctant to provide this information if they don’t share the same doctor as their family member. It may be possible, as a practical matter, for the employee to add this information after receiving the certification back from the provider.

The health care provider completes most of this form.

The first question for the health care provider is “Does patient require care by the employee requesting Paid Family Leave (PFL)?” This seems like a question that the health care provider wouldn’t necessarily be qualified to answer. The form clarifies that “providing care may include necessary physical care, emotional support, visitation, assistance in treatment, transportation, arranging for a change in care, assistance with essential daily living matters, and personal attendant services.” But it’s unclear how the doctor would know in some cases whether the employee would have to be the one to provide such care. Regardless, it’s fair to assume many health care providers will readily mark “yes” for this item.

The health care provider then indicates the patient’s diagnosis (on one line) and timing information, including:

  • Date patient’s condition commenced
  • First date care for patient is needed
  • Expected date patient will no longer require care
  • Estimated number of days per week or days per month patient requires care

Overall, there is little space on the form for the health care provider to enter information about the patient’s medical condition.

The rest of the form is for additional information about the health care provider, who is then required to certify the accuracy of the completed form.

Military Qualifying Event (Form PFL-5)

This form is completed entirely by the employee making the paid family leave request.

As with the other forms, the employee must enter identifying information. Then they provide information about the proposed military qualifying event.

The employee must identify the covered military member by name, date of birth, gender, address, and relationship to the employee.

The form also asks about the dates of the active duty and requires the employee to submit one of these forms of supporting documentation:

  • Covered active duty orders
  • Letter of impending call or order to covered duty
  • Documentation of military leave signed by the approving authority for the military member’s Rest and Recuperation

The employee is also prompted to identify the reason the employee is requesting PFL. The employee may select one or more of the following:

  • Arranging for child care
  • Arranging for parental care
  • Counseling
  • Making financial arrangements
  • Making legal arrangements
  • Acting as military member’s representative before a federal, state, or local agency for purpose of obtaining, arranging, or appealing military service benefits
  • Attending any event sponsored by the military or military service organizations
  • Other

Notably, the form doesn’t require the employee to explain most of the above items. Nor is there is any guidance regarding what may qualify in the “other” category. That item does at least provide a box where it looks like an employee could add more information. The form’s instructions suggest the employee should provide more information in narrative form, but it’s not clear whether that’s necessary. It seems likely that many employees would take the path of least effort and simply check a box.

In addition to advising the employee to attach supporting documentation, there is a supplemental section to be completed if the leave if requested to meet with a third party. The form suggests: “The reason for a meeting can include: arranging for child or parental care, counseling, making financial or legal arrangements, acting as the military member’s representative before a federal, state or local agency for purposes of obtaining, arranging or appealing military service benefits, or attending any event sponsored by the military or military service organizations.”

Processing of Paid Family Leave Request Forms

Once completing all the paid family leave request forms, the employee submits them to the insurance carrier. There is no requirement that the employee provide copies to the employer. This could make it difficult for the employer to even predict the likelihood of the insurer granting the PFL benefits. Meanwhile, however, the employer has to either allow or plan for the employee’s leave in case it is approved.

The law seems to allow the insurer to discuss the information the employee provides with the employer. But it’s not clear whether it would be appropriate for the insurer to share information obtained from a family member’s health care provider. The release only specifically authorizes release (a) to the employee and (b) to the insurance carrier.

Upon receipt of the necessary paperwork, the insurance carrier has 18 days to pay or deny the claim. Employees can appeal denials through a process that can result in arbitration. Unless self-insured, the employer is not a party to that process. Nonetheless, the employer is responsible for permitting leave, reinstating the employee, and maintaining the employee’s group health insurance coverage, depending on the outcome of the PFL benefits claim.

 

Click here for more information about a New York Paid Family Leave webinar.