New APWU FMLA Forms Available

The APWU's FMLA forms have been updated to meet revised certification requirements that took effect Jan. 16, 2009. The forms have also been renumbered. APWU Form 1 is for leave for an employee's own serious health condition and APWU Form 2 is for leave to care for a family member's serious health condition. APWU Forms 3 and 4 are new and are for employees who are requesting military family leave under the new regulations.

Please note that the FMLA does not require the use of any specific form, as long as the necessary information is provided. The APWU’s revised forms are the recommended forms for APWU members to use when requesting Family and Medical Leave.

Although the law does not require that medical certification be provided in any specific format, the new FMLA regulations do require additional information on the certification form. The new APWU FMLA forms now include spaces for 1) the Health Care Provider’s (HCP) telephone number, fax number, and type of medical practice/specialty; and 2) if the employee is requesting intermittent or reduced-schedule leave to care for a family member with a serious health condition, a brief statement explaining why such care is necessary.

Changes

Included among the changes to the FMLA regulations are: a narrowing of the definition of “serious health condition;” requirements for additional medical documentation; requirements that medical documentation be provided more frequently, and permission for employers to contact an employee’s healthcare provider directly, without the employees’ knowledge or permission. The new rules also shorten the amount of time that employees have to provide notice of leave, while giving employers more time to provide notice of eligibility and more time to designate the leave as FMLA.

On the positive side, the new regulations provide special leave rights for military families. The rule allows employees in military families to take leave to care for ill or injured service members and to take leave to help manage the affairs of service members who are away on active duty. A summary of the changes can be found at http://www.apwu.org/issues-fmla/analysis.htm.

DOL Forms

The notice the Postal Service sent the APWU dated January 13, 2009, included changes to the DOL forms, plus a copy of an employee service talk. Please note that, although neither party can dictate how they draft instructions or directives to the field, the employee service talk was subsequently revised at the APWU’s suggestion.

The new DOL forms are as follows:

• A new WH-380-E, "Certification of Health Care Provider for Employee’s Serious Health Condition," and WH-380-F, "Certification of Health Care Provider for Family Member’s Serious Health Condition," which replace the old WH-380, "Certification of Health Care Provider";
• A new WH-381 that will replace USPS Publication 71, "Notice for Employees requesting Leave for Conditions Covered by the Family and Medical Leave Act," to provide written notification detailing the employer’s specific expectations and obligations of an employee taking FMLA protected leave;
• A new WH-382, "Designation Notice," to meet the employer’s obligation to designate leave as FMLA-protected and inform the employee of the amount of leave that will be counted against the employee’s FMLA leave entitlement. The WH-382 form is also used to inform employees of any additional information that may be needed, and/or whether a second or third opinion is being requested by the Postal Service.
• A new WH-384, "Certification of Qualifying Exigency For Military Family Leave," and a new WH-385, "Certification for Serious Injury or Illness of Covered Service Member – for Military Family Leave."

Please note that the two new "optional" medical certification forms created by the DOL to replace the old optional WH-380 permit the healthcare provider to provide information beyond what is actually required. For example, while the new "optional" WH-380-E and WH-380-F forms expressly allow the healthcare provider to state the employee’s medical diagnosis on the form, they are not required to do so.

The APWU’s position has not changed: An employee’s medical diagnosis is private health information that need not, and is not, required to be stated on the form. There were no changes in the law to require the employee’s medical diagnosis to be included on the form. If an employee decides not to use the APWU’s forms and instead chooses to use one of the "optional" WH-380 forms, they should tell their healthcare provider to only state the basic “medical facts” concerning the general nature of their condition, not their medical diagnosis or prognosis.

APWU’s FMLA Medical Certification Forms

The APWU has updated our FMLA forms and created two new FMLA forms for employees in military families. Please note that the APWU forms have also been renumbered. APWU Form #1 is for leave for an employee’s own serious health condition and APWU Form #2 is for leave to care for a family member’s serious health condition. APWU Forms #3 and #4 are for employees who are requesting military family leave under the new regulations. APWU Form #3 is for certification of a qualifying exigency and APWU Form #4 is for military caregiver leave.

Incomplete or Insufficient Medical Certification

Regardless of which forms are used, if the certification is incomplete or insufficient, the new regulations require the Postal Service to state, in writing, what additional information is necessary to make the certification complete and sufficient, and to give employees the opportunity to submit the additional information. The Postal Service will be using DOL Form WH-382, "Designation Notice," in order to meet its obligation to designate leave as FMLA-protected and inform the employee of the amount of leave that will be counted against the employee’s FMLA leave entitlement. The WH-382 form is also used to inform employees what additional information may be needed, if any, and/or whether a second or third opinion is being requested by the Postal Service.

We have also been informed that when additional information is required, the Postal Service will make a copy of the medical certification that was submitted, then return it to the employee for the additional information.

Despite the fact that an employee may have submitted their medical documentation using an APWU Medical Certification Form, or any other format for FML medical documentation, the Postal Service will return the employee’s medical certification, along with the "optional" DOL forms WH-380-E, "Certification of Health Care Provider For Employee’s Serious Health Condition" or WH-380-F, "Certification of Health Care Provider For Family Member’s Serious Health Condition." It is the APWU’s position that once an employee has submitted an APWU Medical Certification Form or any other form for FML documentation, there is no need or requirement to use a different format or the optional WH-380 forms to provide additional required information. Employees should be advised to use the same form, and simply have their HCP add the additional required information to the original certification, or provide it on a separate sheet of paper.

We will be having on-going discussions with the Postal Service regarding the implementation of changes to the FMLA, and any problems that may develop in the field. If there is an issue concerning whether or not management has a right to certain information, the local union may contact their respective National Business Agent or the Industrial Relations Department.