Act Now Advisory: DOL Publishes New FMLA Forms and Proposed Regulations

Last week, the U.S. Department of Labor ("DOL") published Family and Medical Leave Act ("FMLA") notification and certification forms that are effective through February 28, 2015. These forms replace the FMLA forms that had expired on December 31, 2011. Employers may use either the forms prepared by the DOL or their own forms, as long as the forms used contain all information required by the FMLA. The DOL's FMLA forms may be accessed at the following links:

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-381 (Notice of Eligibility and Rights & Responsibilities)

WH-382 (Designation Notice)

WH-384 (Certification of Qualifying Exigency For Military Family Leave)

WH-385 (Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave)

Although no changes have been made to these forms (except the effective date), we anticipate that the DOL will publish new forms once the agency finalizes its proposed regulations ("Proposed Regulations"), which were published on February 15, 2012. The DOL has invited the public to submit written comments on the Proposed Regulations through April 16, 2012.

The Proposed Regulations would, among other things:

  • Expand the military family leave provisions of the FMLA (pursuant to the National Defense Authorization Act of 2010);
     
  • Incorporate a special eligibility provision for airline flight crew employees (pursuant to the Airline Flight Crew Technical Corrections Act);
     
  • Change certain instructions with respect to the calculation of leaves; and
     
  • Make certain changes to the text and order of the existing FMLA regulations, which took effect in 2009, such as removing the actual forms from the text of the final regulations (so that they are available only online).

What Employers Should Do Now

If you use the DOL's FMLA forms in connection with employee leaves of absence under the FMLA, ensure that you utilize the updated forms, which are available at the links provided above.

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If you have questions related to the FMLA, the DOL's forms, or the Proposed Regulations, please contact any of the attorneys listed below.

Jeffrey M. Landes
New York
212-351-4601
Jlandes@ebglaw.com

Susan Gross Sholinsky
New York
212-351-4789
Sgross@ebglaw.com

Anna A. Cohen
New York
212-351-4500

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