DOL Releases Updated FMLA Forms
After extending the expiration dates several times, the U.S. Department of Labor (DOL) Wage and Hour Division has released revised versions of its Family Medical Leave Act (FMLA) forms which will expire on May 31, 2018.
The revised certification forms now make reference to the Genetic Information Nondiscrimination Act of 2008 (GINA), and specifically advise health care providers that they should not provide information about genetic tests, as defined in 29 CFR 1635.3(f) or genetic services, as defined in 29 CFR 1635.3(e).
While the addition of these references to GINA in the certification forms will provide additional notice that genetic information should not be provided on FMLA forms, it unfortunately is not as clear or detailed as the “safe harbor” language contained in GINA itself, which states:
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.
This statement, contained in the regulations, provides additional clarification of the definition of “Genetic Information” on its face – rather than merely referencing the regulations as in the revised FMLA forms. Combined, the two provide ample cover for employers in terms of ensuring it is clear that they are not requesting or requiring genetic information, and so we are still suggesting that employers continue to incorporate the above GINA safe harbor language verbatim into their FMLA forms.
Also note that while all forms were not revised (i.e. Notice of Eligibility and Rights & Responsibilities, Designation Notice, Certification of Qualifying Exigency for Military Family Leave), all have been reissued with new expiration dates, and so employers should still update all of their forms accordingly.
The revised forms are available by clicking the following links:
Certification of Health Care Provider for Employee’s Serious Health Condition:
Certification of Health Care Provider for Family Member’s Serious Health Condition:
Notice of Eligibility and Rights & Responsibilities:
Certification of Qualifying Exigency for Military Family Leave:
Certification for Serious Injury or Illness of Current Servicemember – for Military Family Leave:
Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave:
We hope you find this issue of KKAL’s Labor and Employment Law Watch helpful and informative. Please understand that the Law Watch is designed to provide information about current developments and required actions. If you have any questions regarding any labor and employment law matter, including the issues discussed in this newsletter, please do not hesitate to contact us at 717-392-1100, or email us at the following addresses:
KEGEL KELIN ALMY & LORD LLP
Labor & Employment Practice Group
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