by Gail Cohen, Esq. - Assistant General Counsel Employment and Litigation
& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
July 17, 2020
Really? Couldn’t they have waited until Monday? We knew these were coming and I guess the folks at the U.S. Department of Labor wanted to free up THEIR weekend. Anyway, whining aside, this morning the DOL issued two important items: New FMLA forms and a request for public input on the FMLA regulations and processes in general.
New FMLA Forms
Last year the DOL shared some proposed new FMLA forms and solicited comments from the public. In a previous blog post we described the initial set of proposed forms. During the request for comment period on the proposed forms, Matrix submitted suggestions and input to the DOL, some of which appears to have been incorporated into those new forms. Now the final – but OPTIONAL – new forms have been released, available for your reading pleasure here. The new forms can be used immediately and are valid through June 30, 2023.
Here is a quick summary of changes reflected in the new DOL Certification of Healthcare Provider for the Employee’s Serious Health Condition:
- Check boxes for the employee’s healthcare provider to use to identify which of the five categories of “serious health condition” as well as an option for the provider to check “none of the above,” to indicate the employee does not have a condition that meets this hurdle to qualify for FMLA leave.At Matrix we revamped our SHC certification forms several years ago, adopting the “check the box” style now embodied in the new DOL forms.We also include a “none of the above” option (and made that recommendation to the DOL).This choice is used periodically by providers, validating the need for that option.
- Additional direction to the healthcare provider, including an explanation that medical facts, including diagnosis, are permissible, absent state or local law prohibition, can be submitted on the form.
- A better, more structured way for the healthcare provider to supply his or her medical opinion and best estimate regarding the amount of time for which the employee may need to be absent from work for planned medical treatments, continuous, or intermittent leave.
The new DOL certification for a family member’s serious health condition includes a number of what appear to be very helpful improvements, including:
- Specific instructions to the employee requesting leave and admonitions about his or her responsibility to return the certification to the employer to support the request.
- Definitions of the family relationships for whom an employee can take leave, including that of “spouse” and in loco parentis relationships.
- A requirement that the employee describe the type and amount of care they will be providing to the family member, as well as when they will be able to work a reduced work schedule, if applicable.These same questions are asked of the healthcare provider, presenting some risk that the provider will parrot what the employee is saying as far as the amount and type of care he or she will render.
- Similar to the form for the employee’s own serious health condition, the provider is given check boxes that more easily describe the definitions and the opportunity to opine that none apply.
What is Matrix doing? The Matrix customized certification forms we currently use are still fully compliant. Our examiners receive much more complete information from providers using the Matrix forms compared to when we used the prior DOL forms, resulting in fewer incomplete or insufficient certifications, less follow-up, and faster determinations. Nonetheless, we will review the new forms and seek input from stakeholders as to whether we should adopt the new DOL forms, continue use of our current forms, or make revisions to our current forms.
The DOL also revamped all the other FMLA forms as well as the serious health condition certification forms. At Matrix our letters to employees who have filed an FMLA request contain the information required by the regulations, such as eligibility notice and designation of leave approval or denial, rather than using the forms. Although the new DOL forms do not change any of the regulatory requirements, we will review our letters in light of the new forms to see if any changes are appropriate.
We do use other DOL certification forms, such as for military exigencies and caring for a seriously ill or injured servicemember or veteran. Although we still need to review the new forms, Matrix is likely to adopt the new certification forms for these leave types.
Request for Information regarding FMLA Regulations
The other big news – and it’s about time! – is a Request for Information from the DOL regarding the FMLA regulations. While the DOL invites any and all comments, they are specifically soliciting input on certain areas:
- Challenges with the definition and application of “serious health condition,” specifically with regard to chronic conditions.
- Challenges with respect to intermittent leave usage (my, we could go on for pages on this one!)
- Issues relating to employee notice of need for FMLA leave, including timing and content ofnotice and following employer notice procedures
- Challenges with regard to the certification process.Perhaps the new forms will assist on this somewhat, but what about difficulties in getting timely, complete, sufficient, and clear certifications from providers?
- Is any additional information or clarification needed as to the 7 opinion letters issued on FMLA topics by the DOL since they resumed in 2018?Opinion letters are available on the DOL FMLA home page, at the “Interpretive Guidance” link.
- Any other specific challenges that employers experience in administering FMLA leave.We already have a laundry list of suggestions here, including recertifications, 2nd/3rd opinions, variable schedules . . .
The public comment period is open for 60 days, through September 15, 2020. You can be sure that Matrix will chime in. If YOU have any questions, comments, or pain points, let us know and we will include them in our submission.
In the meantime, stay close to your favorite web-enabled device. We’re anticipating a busy week next week (including the next webinar in our Summer Compliance Series) and look forward to bringing you all of the new information as soon as it’s available.