New FMLA Forms Now Available
With absolutely no fanfare—not even a press release—the Department of Labor’s Wage and Hour division released new Family and Medical Leave Act (FMLA) forms last week.
For those of you keeping score, the prior FMLA forms continued to expire, only to show an additional month’s extension that kept the forms valid while the DOL finished its revisions.
The new forms are finally here, and actually contain very few substantive changes. The most notable change is the addition of references to the Genetic Information Nondiscrimination Act (GINA), and the addition of brief language on the medical certification forms asking healthcare providers not to provide GINA-protected information. For instance, the Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E) adds the following instruction under the “Instructions to Health Care Provider” section:
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).
The certifications for a Family Member’s Serious Health Condition (WH-380-F), Certification for Serious Injury or Illness of Covered Servicemember (WH-385), and Certification for Serious Injury or Illness of a Veteran (WH-385-V), contain similar instructions, but do not include the “manifestation of disease or disorder in the employee’s family members” language.
We note that it is unclear whether the DOL’s instructions are sufficient to qualify as “safe harbor” language under the GINA regulations. If you remember, an employer will not be held responsible for inadvertently requesting or acquiring genetic information if the employer “directs the individual and/or health care provider from whom it requested medical information (in writing or verbally, where the [employer] does not typically make requests for medical information in writing) not to provide genetic information.” The regulations even provide the following suggested 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 employees or their family members. In order 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.
While most employers have defaulted to using this specific language, the regulations also state that an employer can use “similar language” and still take advantage of the safe harbor. We anticipate that the EEOC (which enforces GINA) will view that its DOL brethren’s language will constitute appropriate “similar language,” however, this proposition is not guaranteed. Employers who wish to ensure compliance with GINA should consider either adjusting the FMLA forms to include the more robust GINA language, or continuing to include a cover letter with their FMLA forms that includes such language.
Regardless, we advise employers who use the DOL-provided forms to download the new forms that contain the May 31, 2018 expiration date. Employers who wish to create their own forms should consult with their attorney to assure that any adjustments reflect current regulatory requirements.