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DOL's New FMLA Forms Flawed

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January 8, 2009

With new FMLA regulations becoming effective on January 16, 2009, employers must act quickly to update all existing FMLA policies and forms to comply with the new rules, and take full advantage of the tools the new rules offer to combat FMLA abuse.

Although the U.S. Department of Labor (DOL) has published optional model notices and certification forms, those model forms are not necessarily ideal from the employer perspective. Employers who use the DOL model forms will not obtain all the information to which they are entitled, and may not effectively advise employees of their rights and responsibilities. Some examples of the potential shortcomings of the DOL's model forms include:

  • The DOL model certification forms do not request all of the information that employers may require, such as information regarding an employee's work restrictions.
  • The DOL model designation notice advises employees that "all leave taken for this reason will be designated as FMLA leave," but does not include a place for employers to identify the reason leave is being approved, or explain that leave for this reason will not be designated as FMLA leave once an employee exhausts his or her leave entitlement.
  • The DOL model designation notice does not include language addressing the new rules for fitness-for-duty certifications for intermittent or reduced work schedule leave, which will be crucial to combat FMLA misuse and abuse.
  • Because the DOL's model forms are designed as a "one-size-fits-all" solution, they include extraneous information that will not apply to all or even most employers, and do not reflect individual employers' policies and procedures.

Because of these and other problems, relying exclusively upon the DOL's model FMLA forms can result in unnecessary confusion, disputes, and potential liability. At the same time, employers who design their own forms must take care to ensure that their forms comply with all of the requirements of the new rules. Thus, we strongly encourage employers to work closely with their employment attorneys to develop forms, policies and procedures that fully take advantage of their new rights under the revised rules and also fully comply with the rules. Because even a single complaint of an FMLA violation can result in thousands of dollars in legal expenses, a small investment in this area will prove well worthwhile, even in this cost-conscious economy.

Franczek Radelet is prepared to provide cost-effective assistance to employers as they update their policies, procedures, and forms to comply with the new rules. We do not offer a pre-packaged, one-size-fits-all set of forms, because we do not believe that this is the most cost-effective solution for our clients. Instead, we will work with our clients on an individual basis to help develop and implement a customized FMLA policy and suite of forms that serves their business objectives, and we will do so for no more than an agreed-upon number of attorney hours (typically 3 to 10 hours, depending upon the client's needs). Before beginning work, we will consult with you to determine what needs to be done and provide an estimate with a guaranteed maximum number of hours that will include both preparation of policies and forms, and our consultations with you to develop and implement them. The following forms and policies can be customized to meet your operational and business needs:

  • DOL Notice to Employees of Rights Under FMLA
  • Revised Family and Medical Leave Act Policy
  • Employee call-in procedures
  • Employee FMLA Leave Request Form
  • Notice of Eligibility and Rights and Responsibilities
  • Designation Notice
  • Certification of Health Care Provider Form for Employee's Serious Health Condition
  • Certification of Health Care Provider Form for Family Member's Serious Health Condition
  • Certification of Qualifying Exigency for Military Family Leave
  • Certification of Serious Injury or Illness of Covered Servicemember for Military Family Leave
  • Customized correspondence for:
    • Incomplete or Insufficient Medical Certification
    • Employer's Request for a 2nd or 3rd medical opinion
    • Potential termination of health care coverage for nonpayment of premiums
    • Reminding an employee that FMLA leave is about to expire

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