The U.S. Department of Labor
("DOL") has released updated Family and Medical Leave Act
("FMLA") forms. The new FMLA forms, which expire May 31,
2018, contain "safe harbor" language that tell persons
providing medical information not to disclose any genetic
information, as defined under the Genetic Information
Nondiscrimination Act (GINA).
Background. FMLA allows employers to create and use their
own FMLA forms so long as they provide the information required by
the law. However, most employers use the DOL's FMLA forms for the
sake of convenience and to avoid compliance violations.
GINA, which is enforced by
the EEOC, prohibits employment discrimination based on genetic
information. GINA also restricts the ability of employers to request
the genetic information of an employee or his or her family members.
EEOC regulations provide that an employer's inadvertent receipt of
genetic information following a request for medical information does
not violate GINA if the employer includes "safe harbor"
language in its request directing the medical provider not to release
any genetic information in response to the employer's request.
FMLA Forms. The new FMLA forms
are substantially similar to the former version. One notable change
is that the DOL has added a reference to GINA in its instructions to
health care providers on the certification form for an employee's
serious health condition. Specifically, DOL has added the following
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)."
Leave Request Form Eliminated. The
DOL has eliminated its model FMLA leave request form. This is because
FMLA does not require employees to use a written form to request FMLA
leave. For foreseeable leave, an employee need only provide a verbal
notice that makes the employer aware of the employee's need for
FMLA-qualifying leave, and the anticipated timing and duration of the
leave. Similarly, for unforeseeable leave, an employee need only
provide sufficient information to put the employer on notice that the
leave might be FMLA-qualified leave.
employee requests leave, the employer's responsibilities under FMLA
may be triggered if it has knowledge that such leave may be for an
FMLA-qualifying reason. Therefore, if an employee mentions illness or
injury when making a leave request, the employer should err on the
side of caution and provide the Notice of Eligibility and Rights
& Responsibilities to the employee.
Action Steps for
Employers. Employers who use
their own medical certification forms rather than the DOL version
must be sure to add the safe harbor language to their forms for GINA
The new FMLA forms are
available at: http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm