DOL Issues New FMLA Forms

May 27, 2015 – Jim Spencer

Earlier this month, the Department of Labor (DOL) issued its updated model FMLA forms.  The new forms are good for another 3 years – they expire on May 31, 2018 –  and can be downloaded here.

The new forms are very similar to the previous versions of the forms.  There are only two material differences between the new and old forms, and those differences occur only in the instructions for the various medical certifications:

1. Instructions to the Employer – The DOL added the underlined language to the instruction about employers’ recordkeeping obligations: “Employers must generally maintain records and documents relating to medical certifications, recertifications, or medical histories of employees’ family members, created for FMLA purposes as confidential medical records in separate files/records from the usual personnel files and in accordance with 29 C.F.R.  § 1630.14(c)(1), if the Americans with Disabilities Act applies, and in accordance with 29 C.F.R. § 1635.9, if the Genetic Information Nondiscrimination Act applies.”
2. Instructions to the Health Care Provider – The DOL added the following sentence to the medical certification form for the employee’s own serious health condition: “Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), or genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of a disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).”  This sentence also appears in the other medical certification forms, but without the language about “the manifestation of a disease or disorder in the employee’s family members.”

Both changes to the forms appear to have been made to improve compliance with the Genetic Information Nondiscrimination Act (GINA), but the DOL did not go far enough.  Among other things, GINA prohibits employers from receiving “genetic information” (including family health history) about employees, unless the receipt is what the GINA regulations call “inadvertent.” The GINA regulations include the following “safe harbor” notice that employers can give to health care providers:

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.

If an employer receives genetic information after using the “safe harbor” notice, the receipt of the genetic information will be considered inadvertent – i.e., the employer will not have violated GINA even though it received genetic information. If the “safe harbor” notice isn’t used, an employer can still argue that receipt of genetic information is inadvertent, but the employer would have to show that when it requested medical information about the employee, the request was not likely to result in the receipt of genetic information.  It’s a lot easier to simply use the “safe harbor” notice.

We don’t understand – although we could speculate – why the DOL didn’t add the GINA “safe harbor” notice to the new FMLA medical certifications. But because the new forms don’t include the notice, employers should consider adding the “safe harbor” notice to the forms or attaching a copy of the notice to the forms before they are given to employees.