FMLA nerds rejoice! The United States Department of Labor (DOL) recently released updated model Family Medical Leave Act (FMLA) notices and medical certification forms as well as opinion letters that provide ensured compliance and guidance on two important issues—no-fault attendance policies and organ donation. We will address them in turn.
New Forms
The DOL’s prior FMLA templates expired May 31, 2018 and were on a month-to-month extension until August 31, 2018, when the DOL debuted its updated forms. Don’t worry about sweeping changes; everything is the same as the prior version, except the expiration date, which is now August 31, 2021. You may view the forms in their updated glory at https://www.dol.gov/whd/fmla/forms.htm. The following are included:
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
- WH-381 Notice of Eligibility and Rights & Responsibilities
- WH-382 Designation Notice
- WH-384 Certification of Qualifying Exigency for Military Family Leave
- WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
Although employers are not required to utilize the DOL’s templates, I highly recommend them as a surefire way to limit your organization’s liability for documentary missteps. If your organization has created its own forms or utilizes a third party’s, you could still be liable for providing any mistaken information or unwittingly deceiving an employee regarding their rights and responsibilities under the FMLA.
No-Fault Attendance Policies
Many employers utilize point systems for tracking employee attendance in line with a progressive disciplinary policy, i.e. employees accrue points for tardiness or absences. However, these policies can go awry if not planned appropriately and then applied in a consistent and nondiscriminatory manner.
In Opinion Letter FMLA2018-1-A, the DOL answers an employer’s query as to whether a no-fault attendance policy can be constructed in such a way so that it does not violate the FMLA. The employer notes that employees are automatically discharged upon accruing eighteen attendance points, but do not accrue points for certain absences, including those that are FMLA-designated, with points remaining on an employee’s record for twelve months of active service after accrual. The policy effectively holds any attendance points an employee had prior to their FMLA leave, thereby allowing employees to return from leave with the same number of points they had prior to their leave. These points then remain on the employee’s record for the appropriate amount of time.
The DOL reiterates 29 C.F.R. § 825.220(c)’s position that FMLA leave can not be counted under no-fault attendance policies but reinforces the premise that no-fault attendance policies do not violate the FMLA as long as points are not assessed for employees’ FMLA absences. As the removal of absenteeism points is an employment benefit under the FMLA, a policy constructed in such a way that employees neither lose a benefit that accrued prior to their leave nor allows their leave to count against them (if employees on similar types of leave receive the same treatment) is sufficient.
Organ Donation
Employers often ask if otherwise healthy employees can qualify for FMLA leave when they wish to donate an organ to someone else. In Opinion Letter FMLA2018-2-A, the DOL notes that an organ donation can qualify as a serious health condition under the FMLA when it involves either “inpatient care” (which has been interpreted to mean either “an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity…or any subsequent treatment in connection with such inpatient care”[1]) or “continuing treatment” (which envelops incapacity and treatment, chronic conditions, permanent or long term conditions, and/or conditions requiring multiple treatments[2]). As most organ donations involve in-patient surgery and at least an overnight stay in a hospital as well as follow-up treatment, there are multiple ways in which a donor could qualify for FMLA leave.
The ins and outs of FMLA be complicated and confusing. Contact Soule Employment Law Firm at 984-242-0771 with your questions or concerns, and we’ll help you walk through it.
Legal Disclaimer: Jenny Sweet is licensed in the state of North Carolina. This article discusses general principles of North Carolina and federal law. It should not be considered legal advice for a particular factual setting and does not create an attorney-client relationship.
[1] 29 C.F.R. § 825.114
[2] 29 C.F.R. § 825.115