Without any fanfare, the Department of Labor published new FMLA forms. They are effective through May 31, 2018. See links below. Interestingly, the DOL did not revise the FMLA poster and still did not create a "Fitness-For-Duty" certification form. At first glance, it appears the only material revision to some of the forms is a cryptic reference to the Genetic Information Nondiscrimination Act ("GINA"). The EEOC enforces GINA – which prohibits employers from discriminating against employees or applicants because of genetic information.
Tucked away in the FMLA health care provider revised instructions is the following sentence: "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)."
This belated GINA insertion is not surprising. Since 2008, employers have been counseled to include GINA disclaimers in any written inquiry requesting medical information about an individual (e.g., FMLA, ADA, workers' compensation, drug test consent forms). What is surprising is the DOL's failure to use the GINA disclaimer specifically sanctioned by its government counterpart – the EEOC. See 29 C.F.R. § 1635.8(B). As set forth in that regulation, if the disclaimer language is utilized, then any receipt of genetic information in response to a medical information request will be deemed inadvertent and not a GINA violation. In an abundance of caution, we recommend employers still attach the EEOC's detailed GINA disclaimer to any medical inquiry form, including the revised FMLA forms.
Links to the new FMLA forms:
- Notice of Eligibility and Rights & Responsibilities (WH-381 – DOL still kept the "Revised February 2013" date in the lower right-hand corner)
- Designation Notice (WH-382 – DOL still kept the "January 2009" date in the lower right-hand corner)
- Certification of Health Care Provider For Employee's Serious Health Condition (WH-380-E)
- Certificate of Health Care Provider For Family Member's Serious Health Condition (WH-380-F)
- Certification of Qualifying Exigency For Military Family Leave (WH-384 R – DOL still kept the "Revised February 2013" date in the lower right-hand corner)
- Certification for Serious Injury or Illness of a Current Servicemember – for Military Family Leave (WH-385)
- Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V)