The dog days of summer are here, but the Department of Labor has shown no signs of slowing down. In June, the DOL rolled out revisions to its official Family and Medical Leave Act forms. While the revisions may seem minor at first glance, they could have a large impact on how medical information is shared between employers, employees and health care providers.
What has changed in the new FMLA forms?
The FMLA health care provider certification forms now make express references to the Genetic Information Nondiscrimination Act. Most notably, the revised certification forms instruct health care providers not to provide information on genetic tests, genetic services or diseases or disorders in an employee’s family members (only applicable where an employee seeks leave to care for a family member). This puts health care providers on notice that they should not be sending or disclosing protected genetic information to employers.
Why was GINA added to the FMLA forms?
GINA is a federal statute that prohibits covered entities (including employers) from using genetic information to hire, fire, or make any other employment-related decisions. It also restricts covered entities from requesting, requiring, purchasing and (in certain cases) disclosing the genetic information of applicants and employees. Under GINA’s implementing regulations, employers that request an employee’s medical information should warn the employee and the health care provider not to provide the employee’s genetic information in response to the employer’s request. If employers offer this warning but still receive genetic information in response to their request, this will be considered an inadvertent disclosure – and thus not a violation of GINA. The implementing regulations include sample “safe harbor” language that addresses these types of inadvertent disclosures.
The language in the revised FMLA forms directly prohibits certain disclosures under GINA. It also takes into account that disclosures can and will happen. While the revised language stops short of mimicking the “safe harbor” language in the GINA regulations, it provides a degree of protection for employers who inadvertently receive protected genetic information in response to an FMLA-related request.
How will the revised forms affect employers?
While the language in the new forms is intended to discourage health care providers and employees from sharing information that is protected under GINA, employers still have an obligation not to request this information in the first place. In the event that an employer does receive protected genetic information by mistake, it must keep that information confidential. Although the revised certification forms may not protect employers from all inadvertent disclosures, the forms are certainly a good start and employers may want to incorporate the updated language into their own FMLA forms.
The revised forms are available on the Wage and Hour Division of the DOL website.