New Updated FMLA Forms Issued by DOL
Without any substantive changes, new updated model Family and Medical Leave Act (FMLA) forms have been issued by the United States Department of Labor (DOL) website and are available on the DOL website (in the section for Wage and Hour Division Forms). Employers using the former model FMLA forms on the DOL website should replace their prior versions, which expired on December 31, 2011, with the new versions. Employers using their own FMLA forms should include appropriate language to prevent employee disclosure of genetic information prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Such language should generally be included in the employer’s FMLA policies and other employee communications. The Equal Employment Opportunity Commission regulations suggest a “safe harbor” notice to include in such communications to effectively lessen the chance of an inappropriate disclosure of genetic information. The notice, set forth in Section 1635.8(b)(1)(i)(B) of the Regulations, provides:
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 neither you nor your physician (or your family member’s physician) provide any genetic information when responding to any requests 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.
We recommend employers include this language in its Certification of Health Care Provider and its Notice of Eligibility and Rights and Responsibilities, even though the model forms do not contain the “safe harbor” notice.
Certain states provide for a state-equivalent to FMLA leave for serious health conditions of employees and their immediate family members or for other forms of leave for medical reasons. If a state requires additional or different leave notification and forms, an employer should continue to comply with those state requirements. However, it also should consider including the GINA “safe harbor” notice in its employee communications and notices.
For templates of these updated forms including the GINA notice, please contact an attorney in the Gibbons Employment & Labor Law Department.