Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Alayna Schroeder | The Daily Recorder | November 20, 2018

Recently, the United States Department of Labor (DOL) issued new Family and Medical Leave Act (FMLA) forms.  Under the FMLA, employees who meet certain eligibility requirements generally may take up to 12 weeks of leave annually for reasons related to their own medical condition, a family member’s medical condition, to “bond” with a new baby, or for certain reasons related to a family member’s military service.  The DOL’s forms are an important tool in proper FMLA leave administration.   However, California employers should be cautious about using these forms, because of conflicts between federal and state leave laws.

The New Forms

The new forms are almost identical to the DOL’s existing forms, but the DOL is required by law to review the forms every three years.  Because the previous forms expired on May 31, 2018; the DOL has been extending them each month until now.  The new forms, valid until August 31, 2021, fall into three categories: a “Notice of Rights and Responsibilities,” certification forms, and a “Designation Notice.”   Employers should discard the expired forms and use the new ones to be in compliance.

The “Notice of Rights and Responsibilities” informs employees whether they are eligible for FMLA leave. It also includes how much leave is available, whether the employee must use vacation or other paid leave, information about continuing benefits during the leave, and other information. The notice generally is due within five business days of an employee’s leave request, or when the employer learns a leave may be for an FMLA-qualifying reason.  

Unless the employer has received sufficient information, such as a detailed note from a health care provider, the employer usually sends an applicable certification form with the notice, and allows the employee at least 15 calendar days to return it. Employees submit certification forms to a health care provider or other authorized signatory to certify the leave request is FMLA-qualifying (for example, that the employee’s medical condition is covered by the law). The certification forms also include information about the requested leave that may not be in a typical doctor’s note. For example, if an employee needs leave “intermittently” rather than continuously, the certification form requires the health care provider to specify the frequency and duration of the intermittent leave.

The employer must “designate” the leave as FMLA-qualifying, generally within five business days of receiving the certification. The DOL’s model Designation Notice includes basic information about the leave, such as when it begins and when it is expected to end.  It also notifies the employee if the employer does not approve the leave request, for example because the employee’s certification form is not complete. 

When to Use the Forms

The DOL’s forms are in an easy-to-follow format that allows an employer to fill in blanks and check applicable boxes.  But, there’s a catch for California employers:  the forms do not fully align with the requirements of the California Family Rights Act (CFRA).  The CFRA is a state analog to the FMLA, and also entitles eligible employees to up to 12 weeks of leave.  Usually, but not always, CFRA and FMLA leave run concurrently.

Because the laws are not identical, an employer generally should not use the DOL forms “as is” for California-based employees.  For example, a California employer’s Designation Notice should allow the employer to designate the leave as both FMLA and CFRA-qualifying (if applicable), so the leaves run concurrently.  Otherwise, an employer using the DOL form risks the possibility that an employee will take 12 weeks of FMLA, and qualify for another 12 weeks of CFRA leave.

Sometimes, an employee may submit a DOL medical certification form when requesting leave, even if the employer has not requested it.  In fact, some health care providers now automatically generate these forms for employees who need a medical leave of absence.  Whether an employer should accept the form depends on the circumstances.  If the employee is requesting leave for an FMLA and/or CFRA-qualifying reason, the employer can accept the submitted form as adequate medical certification if it includes the necessary information to make the determination—for example, that the employee has a “serious health condition” and needs a specified amount of time off.

On the other hand, if the employee is not eligible for FMLA and/or CFRA and is instead requesting leave as a “reasonable accommodation” for a disability, the form often will not contain the information an employer needs.  That’s because an employer is obligated to offer an accommodation that will enable the employee to return to work, which may or may not be leave. Because the certification form is written for leave specifically, it often will not include enough information for the employer to assess other potential accommodations as an alternative to leave.

Finally, California’s separate Pregnancy Disability Leave creates additional complications. Employees may be ineligible for FMLA, or CFRA for that matter, but fully eligible for up to four months of pregnancy disability leave.  Additionally, employees eligible for FMLA, CFRA, and pregnancy disability leave may be eligible for up to four months plus an additional twelve weeks of leave.

How to Obtain California-Compliant Forms

The California Department of Fair Employment and Housing (DFEH) has a model certification form when leave is for an employee or family member’s serious health condition, which is available on the internet. Because the CFRA certification requirements are generally stricter than the FMLA certification requirements, employers can use this form instead of the FMLA form, if the leave is CFRA-qualifying.

Employers also have the option to alter the DOL forms to address both FMLA and CFRA use.  For example, an employer can alter the “Rights and Responsibilities Notice” to notify the employee whether an employee is eligible for FMLA leave, CFRA leave, or both.

Finally, employers may be able to obtain compliant forms from third parties with expertise in leave management.  Employers relying on third party forms or leave administration should confirm the forms and processes comply with both federal and California law.