DOL Releases New FMLA Forms

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.

New 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 simple instruction:

Do 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).

FMLA 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.

After an 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 compliance purposes.

The new FMLA forms are available at: https://www.dol.gov/whd/fmla/2013rule/militaryForms.htm