DOL’s Proposed Changes to FMLA Forms Get Mixed Reviews

 

Allen Smith, J.D. By Allen Smith, J.D. August 13, 2019
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​The U.S. Department of Labor (DOL) is suggesting changes to the forms employers commonly use to administer the Family and Medical Leave Act (FMLA). The DOL said its goal is to make the optional forms  easier to understand, but some management attorneys worry doctors will be confused by the revisions.

The department is seeking comment on the proposed revisions through Oct. 4. It noted that the proposed changes would include:

  • Fewer questions requiring written responses. Instead, the forms would have statements with check boxes.
  • Reorganization of medical certification forms to more quickly determine if an impairment is a serious health condition covered by the FMLA.
  • Clarifications to reduce the demand on health care providers for follow-up information.

Improvements

The proposed revisions are an improvement, but the forms still are lengthy, said Abigail O'Connell, senior counsel with Sun Life Financial in Wellesley Hills, Mass.

She said the increased reliance on check boxes would avoid the confusion that results when a health care provider filling out a medical certification has poor handwriting.

"Physicians do not like completing FMLA forms as a general rule," said Scott Eldridge, an attorney with Miller Canfield in Lansing, Mich. "Employers should therefore welcome attempts to simplify the process for employees and their physicians."

While health care providers often provide narrative responses to the questions on the current forms, the responses don't always clearly indicate whether the health care provider thinks the employee has a serious health condition, said Matt Morris, vice president of FMLASource, a ComPsych Corp. program in Chicago. "That leaves the employer to surmise as to the doctor's intent or go back for a clarification," he said. The new check boxes would help minimize the need for clarification.

The presentation of questions on the existence of a serious health condition are an improvement as well, O'Connell said.

"The current forms ask if the patient was admitted for an overnight stay or when the patient was treated, whereas the proposed forms ask if the patient has been admitted or is expected to be admitted for an overnight stay and the days they were seen or will be seen," she noted. Under the current forms, the health care provider is not encouraged to explain future inpatient status or future treatment. "Contemplation of future treatment is critical, since employees are required to report leave at least 30 days in advance when the need for leave is foreseeable."
The revised forms also capture information to support leaves taken for chronic conditions and permanent or long-term conditions, while the existing forms do not.

Incomplete certification forms often delay employers' designating leave as FMLA. The proposed revisions would reduce follow-up by presenting the questions on intermittent leave in a more organized manner, she said.

"The current forms ask for the health care provider to estimate the hours the patient needs care and provide a somewhat confusing and misaligned template to record the frequency and duration," according to O'Connell. The proposed forms have "a tidy template for use to complete the duration and frequency and instruct the health care provider to provide [his or her] best estimate."

The proposed revisions also note that some state or local laws may prohibit disclosure of the patient's diagnosis. "This note supports compliance with laws such as the California Family Rights Act" and is helpful for employers using a single form to designate federal FMLA and state leave, she said.

Concerns Raised

The proposed revisions do have some problems, according to Sarah Platt, an attorney with Ogletree Deakins in Milwaukee.

The layout of the proposed form to certify an employee's serious health condition has check boxes that are likely to be missed, she said. "The new form would call for the health care provider to check a box on the left side of the form for the type of serious health condition at issue, and then also complete check boxes within each category," she said.

"The forms seem to call for health care providers to make legal conclusions at issue, rather than merely answer questions," she added. "I would not be surprised if we see health care providers checking boxes in multiple categories on the proposed certification forms."

While follow-up on FMLA medical certification is common, that often is because a health care provider skips questions on the current forms or writes something vague, such as "unknown." The new forms will not necessarily eliminate this problem.

The proposed medical certification forms organize the questions around the different definitions of a serious health condition. The existing forms gather the same information but do not include headings highlighting the different definitions.

Platt is concerned that with the proposed revisions, health care providers may answer questions that don't apply to the circumstances involved in the leave request. "I think it would be helpful to at least have a check box for 'yes' or 'no' or 'not applicable' along the left margin for each section," she said.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Revised Forms

The forms the DOL has proposed updating are:

  • WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition.
  • WH-380-F Certification of Health Care Provider for Serious Health Condition of the Family Member.
  • WH-381 Notice of Eligibility and Rights and Responsibilities.
  • WH-382 Designation Notice.
  • WH-384 Certification of Qualifying Exigency for Military Family Leave.
  • WH-385 Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave.
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave.

[Visit SHRM's resource page on the Family and Medical Leave Act.]

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