The US Department of Labor (DOL) recently posted updated versions of its model Family and Medical Leave Act (FMLA) notification and certification forms, effective through February 28, 2015. The updated model forms are as follows:1
Certification of Health Care Provider for Employee’s Serious Health Condition
Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F)
Notice of Eligibility and Rights & Responsibilities (WH-381)
Designation Notice (WH-382)
Certification of Qualifying Exigency for Military Family Leave (WH-384)
Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave (WH-385)
The forms do not contain any substantive changes, but the previous forms expired December 31, 2011; so, going forward, employers who use the DOL forms should begin utilizing the new ones. In the alternative, employers using their own forms may continue to do so, provided they do not ask for more information than required by the FMLA.
Notably, the new forms still do not include the “safe harbor” language recommended by the Equal Employment Opportunity Commission’s (EEOC) regulations, to prevent the disclosure of genetic information as prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Thus, regardless of whether employers use the DOL forms or their own forms, they should always add the following language in requests for employee health-related information to avoid liability under GINA for an inadvertent disclosure of genetic information:
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 any 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.2
Thomas G. Hancuch is a shareholder at Vedder Price where he represents employers in all aspects of employee benefits, labor and employment law. His practice focuses on employee benefit plan design and administration, benefit claims and litigation; employee relations and benefits aspects of mergers; acquisitions; workforce reductions and outsourcing; leaves of absence and accommodation of employees with disabilities; employment discrimination; harassment and retaliation claims; employee leasing and worker classification; executive compensation; wage and hour laws;...