TOP TIP: It’s Time to Update Those Federal Forms and Notices – FMLA, FCRA and the ACA!
Employers should be prepared to update certain significant federal forms and notices under the Family and Medical Leave Act (FMLA), the Fair Credit Reporting Act (FCRA) and the Affordable Care Act (ACA).
New FMLA Forms and Notices – The Department of Labor provides model FMLA forms and notices on its website. These documents must be submitted to the Office of Management and Budget for approval every three years. The last batch of documents expired on May 31, 2018, but the DOL continued to extend their expiration date on a month-to-month basis while it awaited approval from OMB. Now finally, the Department of Labor has issued its updated FMLA forms and notices, which expire on August 31, 2021:
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)
- WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)
- WH-382 Designation Notice (PDF)
- WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)
- WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave (PDF)
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (PDF)
Although the forms are essentially unchanged from the prior version, employers should begin using the current forms rather than the expired ones.
New Language for FCRA Notice – As for the FCRA, if employers use a third-party provider to conduct a background check (i.e. consumer report), there are certain required notices and communications. In particular, if the employer is going to take adverse employment action – such as declining to hire the applicant – based on the report, it must provide to the applicant a summary of their rights under FCRA (along with notice of the intent to take adverse action and a copy of the report). The Consumer Financial Protection Bureau (“CFPB”) has prepared the required summary, entitled “A Summary of Your Rights Under the Fair Credit Reporting Act.”
Effective September 21, 2018, however, the Economic Growth, Regulatory Relief and Consumer Protection Act, which was passed by Congress and signed into law by President Trump in May, requires that the following language be included any time the “Summary of Your Rights” document is provided:
Consumers Have The Right To Obtain A Security Freeze
You have a right to place a ‘security freeze’ on your credit report, which will prohibit a consumer reporting agency from releasing information in your credit report without your express authorization. The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent. However, you should be aware that using a security freeze to take control over who gets access to the personal and financial information in your credit report may delay, interfere with, or prohibit the timely approval of any subsequent request or application you make regarding a new loan, credit, mortgage, or any other account involving the extension of credit.
As an alternative to a security freeze, you have the right to place an initial or extended fraud alert on your credit file at no cost. An initial fraud alert is a 1-year alert that is placed on a consumer’s credit file. Upon seeing a fraud alert display on a consumer’s credit file, a business is required to take steps to verify the consumer’s identity before extending new credit. If you are a victim of identity theft, you are entitled to an extended fraud alert, which is a fraud alert lasting 7 years.
A security freeze does not apply to a person or entity, or its affiliates, or collection agencies acting on behalf of the person or entity, with which you have an existing account that requests information in your credit report for the purposes of reviewing or collecting the account. Reviewing the account includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements.
We expect that the CFPB will issue a revised “Summary of Your Rights” document that will include the required language, but it is not yet available. Pending the updated document, employers should add the required language as a supplement to the current “Summary of Your Rights” document.
New ACA Notices of Exchanges – The ACA requires employers to provide a written notice to employees regarding the insurance purchasing exchanges (i.e. the “Health Insurance Marketplace” or the “Marketplace”). The notice must inform employees about the availability of the Marketplace, the availability of a premium tax credit, and the impact of obtaining coverage through the Marketplace. These notices must be provided to employees within 14 days of hire. The Department of Labor has now issued updated model notices for employers that offer health plan coverage to some or all employees and for employers that do not offer health plan coverage.