Without any public announcement, the Department of Labor’s Wage and Hour division released new Family and Medical Leave Act (FMLA) model notices and medical certification forms. The new forms will expire on May 31, 2018.
The only notable change in the “new” forms is that they now address disclosure of genetic information. For example, in the instructions to the health care provider on the certification for an employee’s serious health condition, the DOL added the following instruction:
Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).
Similar language was also added to the other FMLA model forms.
The inadvertent receipt of genetic information is the biggest risk for employers when it comes to compliance with the Genetic Information Nondiscrimination Act of 2008 (“GINA”). To address this concern, the Equal Employment Opportunity Commission (EEOC), which enforces GINA, created a “safe harbor” for employers who receive genetic information to use to warn health care provider to not provide genetic information. If the warning is provided, any acquired genetic information will be considered inadvertent, and not in violation of GINA. While alternative wording may be used, the EEOC provided the following sample safe harbor language:
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.
As you can see, the DOL’s “safe harbor” language in the new FMLA forms is cryptic compared to the EEOC’s recommended language. While we would like to think the EEOC will approve the DOL’s “safe harbor” language, we cannot be certain. Consequently, employers may be want to revise their FMLA medical certification forms to include the EEOC’s safe harbor provision or include it in a cover letter when requesting medical information.
Here are links to the new FMLA forms:
- 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)
The forms also can be accessed from the DOL web page.
If you have any questions or need assistance customizing your FMLA forms, please contact our Labor & Employment Practice Group. We encourage you to subscribe to our Labor & Employment E-Briefs to get the latest HR news, tips, and updates.