The Employer's Legal Resource: DOL Updates FMLA Forms to Address GINA

06.01.15

On May 27, 2015, the DOL published new model FMLA forms on its website. Many employers opt to use the DOL forms believing this is the best way to avoid accusations they didn't say enough (or, worse, said the wrong thing!).

If you are such an employer, it is time to throw out the old forms and replace them with the new and improved DOL Model Forms, which you can access here. Here is the list of all the forms:

  • WH-380-E Certification of Health Care Provider for Employee's Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member's Serious Health Condition
  • WH-381 Notice of Eligibility and Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency for Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Current Servicemember - for Military Family Leave
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

The new forms have an expiration date of May 31, 2018, so if you are using a form with an earlier expiration date - like milk - throw it out! (Check the upper right-hand corner of the forms for the expiration date.)

What do you have to change? Well the best news is you won't really change the way you are operating (assuming you already have good processes in place).

First, there was no change to the DOL's poster, so you don't have to replace the one you have posted prominently in all the break rooms. If you need a copy of the poster, you can download it here.

Second, the Model Forms that are not completed by a health care provider had no change, other than to change the expiration date. This includes WH-381, WH-382, and WH-384. (Even though the only change was to the expiration date, we recommend you use the one with the May 31, 2018, expiration date.)

Thus, the real changes only occurred in WH-380-E, WH-380-F, WH-385, and WH-385-V - the Certifications involving health. In each, language was inserted in the instructions to the health care provider to address the Genetic Information Nondiscrimination Act of 2008 (GINA). In the forms, two versions appear:

Do not provide information about genetic tests, as defined in 29 CFR § 1635.3(f), or genetic services, as defined in 29 CFR § 1635.3(e).

And, appearing only in WH-380-E:

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).

The DOL taking the time to address this is a good reminder for employers about GINA.

Generally speaking, GINA prohibits an employer from using genetic information in employment decisions. We discussed GINA at length when it was first enacted, and you can read the full article here.

For purposes of the FMLA forms, it should be noted that GINA set forth six circumstances under which an employer could request genetic information, one of which was "to comply with" the FMLA. However, in our earlier article, please note our strong recommendation that employers not ask for any information beyond what the DOL model forms permitted for fear of asking an impermissible question under the FMLA.

Back to GINA; Employers were in quite a quandary with the new law, so the EEOC developed a "safe harbor" through its regulations about which you can read in more detail here. In essence, if an employer has to elicit medical information from an employee (e.g., in a request for a return to work), it must takes steps to ensure it does not gather genetic information in the process. In order to avoid your inadvertently receiving genetic information, an employer should warn the employee and/or health care provider not to disclose genetic information. The "safe harbor" language the EEOC wants you to use is:

"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 you use this language and still receive genetic information, your receipt of that information will be seen as inadvertent and not a violation of GINA - hence, you are in a "safe harbor" if you use this language.

I could not find any explanation from the DOL as to its action with regard to the Model Forms. I suspect that, despite GINA's recognition that genetic information can be shared "to comply with" the FMLA, the DOL is trying to incorporate into its forms a warning to the health care provider not to disclose genetic information. Simply put, better safe than sorry.

The bottom line for employers -

  • Genetic information will rarely be necessary to comply with the FMLA.
  • You should use the DOL Model Forms for your best protection.
  • If you stray from the DOL Model Forms for whatever reason, you should use the "safe harbor" language in any document in which you are requesting medical or health information.

By Kristen L. Brightmire kbrightmire@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
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