Why it matters

For employers looking for guidance on Family and Medical Leave Act (FMLA) paperwork, the Department of Labor (DOL) has stepped in to help. With existing model forms issued by the agency having expired, the DOL issued seven new model notice and certification forms that are valid through May 31, 2018. For the most part, the new model FMLA forms replicate the prior versions, with one minor change: the inclusion of references to the Genetic Information Nondiscrimination Act. Although employers are not mandated to use the DOL’s forms for an employee’s FMLA leave, they offer a valuable road map to compliance with statutory requirements.

Detailed discussion

The Family and Medical Leave Act (FMLA) contains a myriad of requirements for employers to provide notice to employees about their rights and responsibilities under the statute, as well as restrictions on the type of information employers can request from workers to support their request for leave.

To achieve compliance with the statutory scheme, many employers look for guidance from the Department of Labor’s (DOL) model forms. However, the last iteration expired on February 28, 2015, leaving employers in a form of legal limbo.

Now the agency has stepped up with new versions of the forms. The seven different documents are virtually identical to the prior forms, with one notable tweak: the addition of language referencing the Genetic Information Nondiscrimination Act (GINA).

The FMLA and GINA—which prohibits employers from discriminating against employees or applicants based on their genetic information—can collide if an employer receives genetic information from a healthcare provider in response to an FMLA-related request for information. To avoid this problem, the new model form instructs healthcare providers not to furnish any genetic information in response to an FMLA request.

Specifically, the DOL added the following language: “Do not provide information about genetic tests, as defined in 29 C.F.R. Section 1635.3(f), genetic services, as defined in 29 C.F.R. Section 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. Section 1635.3(e).”

The DOL provided seven new 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; and WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave.

While employers are not required to use the DOL’s model forms, they provide valuable guidance to following the statute.

The new forms are all effective through May 31, 2018.

To access the new forms on the DOL website, click here.