The DOL has (finally) updated its FMLA forms, and made them available on its website, here (see “Forms” section toward the bottom of the page).
In addition to revising the expiration date to May 31, 2018, the forms also now include references to the Genetic Information Nondiscrimination Act (GINA). Most significantly, the Certification of Health Care Provider forms now instruct providers not to disclose information about genetic testing, genetic services, or “the manifestation of disease or disorder in the employee’s family members,” as those terms are defined by regulation.
Despite this update, it remains good practice for employers to include their own GINA-related disclaimers when seeking information for purposes of FMLA compliance. Employers that include the following “safe harbor” language when distributing FMLA forms will not be subject to liability for a GINA violation if genetic information is nevertheless disclosed, as the disclosure 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.
Employers subject to the FMLA should check the expiration dates on their current forms, and if needed, download and start using the new forms going forward.