Can Employers Still Use the FMLA Forms that Expired on June 30, 2023?

Particularly observant employers may notice (and worry) that the U.S. Department of Labor’s model Family and Medical Leave Act forms and notices that they have been using have an expiration date of June 30, 2023, and that the forms now available on the DOL’s website have a new expiration date of June 30, 2026. But there is no need to panic – the old forms are just fine.

As FMLA-covered private employers (those with 50 or more employees) know, the FMLA imposes very specific notice and other informational requirements on employers (and employees). In order to assist employers with compliance, the DOL has prepared model notices and forms that employers may use. Employers may also develop their own notices and forms, but given the very technical requirements that these documents must meet, we strongly suggest that employers use the DOL’s models. These notices and forms are:

• Eligibility Notice, form WH-381 – informs the employee of their eligibility for FMLA leave or at least one reason why the employee is not eligible.
• Rights and Responsibilities Notice, form WH-381 (combined with the Eligibility Notice) – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
• Designation Notice, form WH-382 – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.
• Employee’s serious health condition, form WH-380-E – to be completed by a health care provider when a leave request is due to the medical condition of the employee.
• Family member’s serious health condition, form WH-380-F – to be completed by a health care provider when a leave request is due to the medical condition of the employee’s family member.
• Qualifying Exigency, form WH-384 – to be completed by the appropriate authority when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
• Military Caregiver Leave of a Current Servicemember, form WH-385 – to be completed by a health care provider when requesting leave to care for a family member who is a current service member with a serious injury or illness.
• Military Caregiver Leave of a Veteran, form WH-385-V – to be completed by a health care provider when requesting leave to care for a family member is who a covered veteran with a serious injury or illness.

As the DOL explains on its FMLA forms webpage, the expiration date is related to the collection of certain information required by the Office of Management and Budget. Other than extending the expiration date to 2026, there was no change in the forms and notices. So, employers – it’s a sell-by date, not a use-by date.