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Federal - FMLA Forms Updated

On July 16, 2020, the U.S. Department of Labor (DOL) released new optional-use Family and Medical Leave Act (FMLA) forms that employers can use to provide required notices to employees; and employees can use to provide certification of their need for leave for an FMLA qualifying reason. These forms are electronically fillable PDFs and can be electronically saved. Employers may also use their own forms if they provide the same basic notice information and only require the same basic certification information.

The forms that were updated, in June 2020 and expire June 30, 2023, have more questions with check-box responses and include electronic signature features:

  • Notice Forms – Employers covered by the FMLA are obligated to provide their employees with certain critical notices about the FMLA so that both the employees and the employer have a shared understanding of the terms of the FMLA leave. Employers can use the following forms to provide the notices required under the FMLA:
    • Eligibility Notice (Form WH-381) – informs the employee of their eligibility for FMLA leave or at least one reason why the employee is not eligible.
    • Rights and Responsibilities Notice (Form WH-381) (combined with the Eligibility Notice) – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
    • Designation Notice (Form WH-382) – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.
  • Certification Forms – Certification is an optional tool provided by the FMLA for employers to use to request information to support certain FMLA-qualifying reasons for leave. An employee can provide the required information contained on a certification form in any format, such as on the letterhead of the healthcare provider, or official documentation issued by the military. There are five DOL optional-use FMLA certification forms:

The FMLA does not require the use of any specific form or format. Although the DOL revised the FMLA forms in June 2020 to make them easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave, the revised forms convey and collect the same information, which can be provided in any format, as the old DOL forms.

Employers cannot require employees to provide new certification, using the updated form, when the employee already provided the required FMLA information using the old certification form. Additionally, the content of the information contained within an expired optional-use DOL form is still applicable, regardless of the expiration date. The expiration date on the DOL forms is related to the collection of information as required by the Office of Management and Budget (OMB), and not relevant to the content of the required information.

Lastly, these forms do not have any applicability to the Families First Coronavirus Response Act (FFCRA). The FFCRA has different documentation requirements located here (see #15 and #16).