Department of Labor Revises FMLA Forms
The Department of Labor (DOL) recently issued revised Family Medical Leave Act (FMLA) forms (available at https://www.dol.gov/whd/fmla/2013rule/militaryForms.htm), which are effective through May 31, 2018. Although employers are not required to use the FMLA forms provided by the DOL, those who do should use the updated forms moving forward. In addition, employers are advised to include the Genetic Information Nondiscrimination Act (GINA) safe harbor language discussed below even when using the revised FMLA forms.
The revised forms provided by the DOL include:
· WH-380-E: Certification of Health Care Provider for Employee’s Serious Health Condition;
· WH-380-F: Certification of Health Care Provider for Family Member’s Serious Health Condition;
· WH-381: Notice of Eligibility and Rights & Responsibilities;
· WH-382: Designation Notice;
· WH-384: Certification of Qualifying Exigency for Military Family Leave;
· WH-385: Certification for Serious Injury or Illness of Current Servicemember for Military Family Leave; and
· WH-385-V: Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave.
The most notable change in the revised FMLA forms is that they directly reference GINA, which generally prohibits employers from discriminating against employees or applicants based upon their genetic information and restricts employers from inquiring about genetic information of employees and their family members. An employer generally does not violate GINA if it receives genetic information from a healthcare provider in response to an FMLA request for information so long as the employer instructed the provider not to furnish any genetic information.
Accordingly, the revised Certification of Health Care Provider for Employee’s Serious Health Condition asks health care providers not to “provide information about genetic tests … genetic services … or the manifestation of disease or disorder in the employee’s family members[.]” The DOL added similar language to other certification forms.
Although GINA already provides safe harbor language to protect employers from violating its provisions, the safe harbor language does not mirror the revised language provided by the DOL. Under GINA, employers should include the following language in medical inquiries to employees:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring
genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that
you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an
individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member
sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by
an individual or family member receiving assistive reproductive services.
Because the new FMLA forms do not incorporate this exact GINA safe harbor language, we recommend that employers continue attaching the GINA safe harbor language in medical inquiries, even when using the new FMLA forms, in order to prevent GINA violations more effectively.