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Updated FMLA Forms and Managing Leave as 
Employees Return to the Workplace and Children Return to School

Under the Family Medical Leave Act (“FMLA”), covered employers must provide employees job-protected, unpaid leave for specified family and medical reasons, which may include the flu where complications arise, and COVID-19. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same terms and conditions that existed prior to taking the leave.

All covered employers are required to display the Department of Labor (“DOL”) FMLA poster in a prominent area where employees and applicants can see it.

 

Additionally, covered employers who have FMLA eligible employees must:

Provide employees with the general notice about the FMLA;

Notify employees concerning their eligibility status and rights and responsibilities under the FMLA; and

Notify employees whether specific leave is designated as FMLA leave and the amount of time that will count against their FMLA leave entitlement.

 

Updated FMLA Forms

The DOL has recently updated the FMLA notices and forms on its website. The streamlined forms are intended to be easier for employers, employees, and leave administrators to understand and use. The forms now include more questions which can be answered by checking response boxes (as opposed to requiring written responses), as well as additional information on the substitution of paid leave and concurrent leave usage during FMLA on the Notice of Eligibility and Rights & Responsibilities form.

The revised certification forms also contain additional information regarding the circumstances in which follow up information may be obtained from healthcare providers and are reorganized with the goal of more efficiently determining whether a condition qualifies as a serious health condition. In a nod to safety concerns regarding the COVID-19 pandemic, the forms now include electronic signature features to allow for contactless completion and transmission of completed forms.

Updated FMLA Forms:

Notice of Eligibility & Rights and Responsibilities under FMLA:

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-381.pdf

Employee. Use when a leave request is due to the medical condition of the employee:

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-380-E.pdf

Family Member. Use when a leave request is due to the medical condition of the employee’s family member:

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-380-F.pdf

COVID-19 FMLA Q & A

All different types of leave-related scenarios are likely to arise as employers navigate employees returning to work, and schools begin the opening process. Below are some examples of the questions and answers provided by the DOL regarding FMLA implications due to COVID-19:

  • Can an employee stay home under FMLA leave to avoid getting COVID-19?

Leave taken by an employee for the purpose of avoiding exposure to COVID-19 would not be protected under the FMLA. Employers should encourage employees who are ill with COVID-19 or are exposed to ill family members to stay home and should consider flexible leave policies for their employees in these circumstances.

  • Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA? (added 7-20-2020)

Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.

 


Conclusion

All employers that are subject to the FMLA should be familiar with its notice requirements and obligations. This includes the expanded FMLA leave rights that were added in response to COVID-19 but were not included in the updated forms.

As employees begin to return to the workplace, employers should have procedures in place for when a need for leave arises. When establishing new policies and procedures, employers should ensure that they are in compliance with not only the FMLA, Americans with Disabilities Act (“ADA”), and other federal employment laws, but state leave laws as well. Many states are releasing their own, more stringent, leave requirements as employers phase employees back into the office. Employers are encouraged to support community mitigation strategies and should consider flexible leave policies for their employees.

The content herein is provided for educational and informational purposes only and does not contain legal advice. Please contact our office if you have any questions regarding eligibility language for your employee benefit plans.

Dated: August 24, 2020

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