If you are responsible for administering your company’s Family and Medical Leave Act (“FMLA”) policy, you know that the associated FMLA forms can be both your best friend and your worst nightmare.
On the one hand, proper use of the forms – such as the various Certifications, the Rights & Responsibilities Notice, and the Designation Notice – can provide valuable information to help you evaluate and manage employees’ leave requests. On the other hand, attempting to comply requirements surrounding the forms, not to mention trying to understand the meaning of information received from medical providers – can be an exercise in frustration.
Below are some “best practices” relating to FMLA forms that may aid in the administration of your FMLA policy:
- FMLA Employee Request Form: Although the Department of Labor (“DOL”) has not provided a template FMLA request form, employers are permitted to develop and use their own. While implementing such a form (including adding a reference to it in your policy) would not permit ignoring an oral request, requiring employees to submit requests in writing provides a clear method of requesting leave, establishes a record of what leave was requested and when, and creates an opportunity to reiterate expectations surrounding FMLA leave requests.
- Deadlines: Become familiar with the deadlines for providing various notices to employees (e.g., Notice of Eligibility due within five days of being placed on notice that FMLA leave may be needed; Designation Notice due within five days receiving sufficient information to know whether the leave is FMLA-qualifying), and comply with them. Train supervisors to recognize and report a potential FMLA leave request so that you do not miss the deadlines.
- DOL Templates: Use the template forms (notices, certifications) provided by the DOL. Doing so ensures that you meet all notice requirements as well as obtain all permitted information (and only such information). The forms can be found on the DOL’s website. Consider pulling the forms directly from the website each time you need them (as opposed to keeping copies in a file) to ensure that you are using the most up-to-date, non-expired form.
- GINA Safe Harbor Language: Although the DOL is likely to revise the Certification forms at some point to include the GINA Safe Harbor language (essentially directing the medical provider to not provide genetic information), until then, the language should be added to (or included with) the forms and any other requests for medical information from providers.
- Complete Forms: Ensure that all notices are appropriately completed. For example, if you will require a Fitness For Duty Certification in order for the employee to return to work at the end of the leave, you must inform the employee of this requirement in advance by checking the appropriate line on the Designation Notice.
- Review Certifications Carefully: This is your opportunity to gather as much information as possible in order to confirm the need for leave, determine the type and amount of leave authorized by the medical provider, and identify the appropriate timing of a future request for recertification. So, take advantage of it by requiring that the Certification form be both complete (all applicable entries completed) and sufficient (responsive and not vague or ambiguous). If the Certification form has not been properly completed, return it to the employee with specific instructions about what information is needed, the deadline by which the information must be provided (allow seven days to cure), and the potential consequences for failing to comply.
- Recordkeeping: Keep copies of all forms and other correspondence sent to and received from an employee relating to an FMLA request for at least three years. This will ensure that you not only comply with the recordkeeping requirements set forth in the FMLA and regulations, but that you have necessary evidence should an employee pursue an FMLA complaint.