HR Tip: DOL issues new guidance on return to work under FFCRA and new FMLA notices and forms

On July 20, 2020, the U.S. Department of Labor (DOL) issued additional guidance on return-to-work issues under the Families First Coronavirus Response Act (FFCRA). The guidance makes clear that the time an employee was on furlough does not count against their FFCRA/FMLA leave entitlement. It also addresses returning to work after caring for a family member with the coronavirus and requiring negative COVID-19 tests before returning to work. Employers can neither discriminate nor retaliate against employees who use FFRA leave and cannot extend an employee's furlough simply because they would need to take FFCRA leave if called back to work.

New FMLA notices and forms were released last month by the DOL. Designed to be easier to use with checkboxes replacing some written responses, there are no significant substance changes. The notice provides a clearer explanation of how employer-provided accrued paid leave runs concurrently with FMLA. It also outlines the steps that an employee should take when the certification is either incomplete or insufficient. Further, the new form requires a "best estimate" of the employee's or family member's future treatment and there is a box in which the health care provider can confirm there is no serious health condition. The forms now include electronic signature features to allow for contactless completion and transmission of completed forms.

Also, the DOL has published a Request for Information seeking input from the public regarding the regulations implementing the FMLA. Comments are due by Sept. 15, 2020.