The U.S. Department of Labor’s Wage and Hour Division (WHD) issued new FMLA medical certification and notice forms on September 4, 2018. The forms are available here. The new forms are substantively identical to the agency’s previous (now expired) forms, but they include the new expiration date—August 31, 2021—in the upper right hand corner. Employers who use the government forms should start using the new forms, with the new expiration date, immediately. Employers who use their own customized forms—for example, forms providing notices required under state or local leave laws such as the DCFMLA, or forms tailored to the employer’s own policies—need not alter the content of their forms in light of the new federal forms, assuming the employer’s customized forms were otherwise compliant, given that WHD did not make substantive changes.
We blogged in February about two Seventh Circuit cases pending before the Supreme Court that would have given the Court the opportunity to provide guidance as to whether, and if so to what extent, the ADA requires employers to provide disabled employees who have exhausted their FMLA and other employer-provided leave with additional leave as a reasonable accommodation. The Supreme Court recently denied review in both of those cases, so the issue will continue to percolate in the lower courts. What does this mean for employers? Given the unsettled state of the law, and as further explained in our prior blog, employers should continue to evaluate disabled employees’ requests for additional leave on a case-by-case basis. The length of the leave request, whether the employee’s doctor can provide a reasonably certain return date, and the impact of the request on coworkers and operations are all relevant considerations.
Employers generally assume, correctly, that an employee who fails to report for duty at the end of an FMLA leave with a specified end date can be terminated. But it is important not to send out that termination letter too quickly, because employees sometimes need more leave than originally anticipated. Federal regulations require employees to provide “reasonable notice (i.e., within two business days) of the changed circumstances where foreseeable.” 29 C.F.R. § 825.311. This “reasonable notice” rule seems designed to benefit the employer. However, a federal district court in Virginia recently interpreted it to permit an employee who learned from her doctor on the very last day of her FMLA leave that she needed additional leave to wait several days after her leave ended to tell her employer she needed a brief extension. Because the employer fired the employee the day after her leave expired, before the end of the “reasonable notice” period, the court found an FMLA violation and awarded the employee liquidated damages and front pay totaling nearly $750,000. Perry v. Isle of Wight County, No. 2:15-cv-204 (E.D. Va. Aug. 10, 2017), appeal docketed, No. 17-2054 (4th Cir. Sept. 11, 2017).
Employers can take measures to avoid being caught by surprise when an employee who has not exhausted her available FMLA leave time needs to extend her leave. For example, employers should consider requiring periodic updates of the employee’s status and anticipated return date during the leave, particularly as the return-to-work date approaches. In addition, employers should review their FMLA forms and policies to be sure that employees are clearly informed of their duty to provide reasonable notice of any changed circumstances. Employers should also consider defining “reasonable notice” to mean two business days, rather than the four business days afforded by the employer in Perry. Finally, when an employee, such as the Perry plaintiff, has a doctor’s appointment scheduled for the last day of leave, consider requesting same-day notice of any need for additional leave, while bearing in mind that the law may afford the employee a grace period in which to provide such notice.