If You Agree This New FMLA Form Is an Improvement, Check Box 1

03 September 2019 Labor & Employment Law Perspectives Blog
Authors: Sara P. Madavo Adam G. Pence

Right now, the Department of Labor (DOL) is testing the theory that less is really more.  To that end, last month the agency proposed changes to the optional-use forms that employers commonly use to administer the Family and Medical Leave Act (FMLA).  

The DOL anticipates these revised forms will increase compliance with the FMLA, not to mention make life easier, both for the health care providers who fill out the forms and for the employers who make decisions based on the information.  The proposed changes will hopefully make it faster and easier to determine if an impairment is a serious health condition covered by the FMLA and reduce the need for employers to go through the time-consuming process of seeking additional, follow-up information from health care providers (because of unclear responses or even bad handwriting).  

Among other things, the revised forms include fewer questions that require a written response.  Instead, such questions are replaced with statements that require the health care provider simply to check a box if the statement supposedly applies.  Under the current forms, health care providers provide narrative responses that sometimes fail to answer clearly the underlying question of whether the health care provider thinks the employee has a serious medical condition.  These narrative responses often require the employer to speculate as to the doctor’s true intent with the response (i.e., is there a serious condition or not?) or require clarification of this intent.  By narrowing the scope of the information provided by health care providers, the DOL aims to eliminate the need for this speculation and clarification. 

The proposed forms include several other new features designed to eliminate confusion and promote efficiency throughout the entire process.  For example, there are color-coded sections for employees, employers, and health care providers.  The forms also replace the confusing template currently used for estimating how long a patient needs care with a much more streamlined document.  These changes are meant to reduce blank space and improve the readability of the form.   

The new forms also request additional valuable information through questions that actually encourage health care providers to explain not just the current treatment but potential future treatment as well (the current forms only focus on what has already been done to treat the patient).  Contemplating such future treatment is critical because, under the FMLA, employees are required to provide at least 30 days advance notice of leave when the need for leave is foreseeable.  

The proposed forms, however, are not without their potential drawbacks.  For example, some believe that the layout of these forms may lead doctors to overlook certain boxes.  Additionally, some critics of the forms are concerned that the new simplistic questions will require health care providers to make a legal conclusion rather than merely providing all the necessary information and allowing the employer to decide (to assist health care providers making this determination, the forms now include a definition for a serious health condition).

The DOL is currently soliciting comments about these proposed forms, which are available here.  The comments must be submitted by October 4, 2019.  

To comment on the proposed revisions, email WHDPRAComments@dol.gov or mail the Division of Regulations, Legislation and Interpretation, Wage and Hour, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington DC 20210.

We will keep you updated and let you know if and when the new forms are implemented.

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