Many employers use the United States Department of Labor’s (“DOL’s”) certification forms when evaluating and authorizing employee requests for family and medical leave. A few months ago, the DOL revised those forms. If you use the DOL forms, make sure you are using the updated forms.
Since the regulations under the Genetic Information Nondiscrimination Act of 2008 (“GINA”) were enacted in 2011, we have advised employers to include GINA “safe harbor” language on their Family and Medical Leave Act (“FMLA”) certification forms. GINA generally prohibits employers from using genetic information to make employment decisions. If certain requirements are met, however, an employer will not be held liable under GINA if it acquires genetic information inadvertently. In particular, the GINA regulations state that if an employer includes language similar to the following in any request for medical information, any receipt of genetic information in response to the request will be deemed inadvertent.
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.
In May 2015, the DOL finally revised its FMLA forms to comply with GINA. For example, WH-380-E: Certification of Health Care Provider for Employee’s Serious Health Condition, now refers to GINA and states that an employer must maintain records “in accordance with 29 C.F.R. § 1635.9, if [GINA] applies.” It also includes the following “safe harbor” language:
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).
To avoid any potential GINA violations when seeking medical information in connection with employee FMLA requests, employers should ensure that they are using current FMLA forms that include GINA “safe harbor” language. The DOL’s updated forms now do that.