Employers subject to the Family and Medical Leave Act (FMLA) must be careful to avoid receiving an employee’s genetic information in documents certifying a need for leave. The U.S. Department of Labor (DOL) recently updated its FMLA notice and certification forms, which expired in February, to include language aimed at preventing the inadvertent disclosure of such genetic information. The new model forms are available here.
Specifically, these forms now reference the Equal Employment Opportunity Commission’s (EEOC) 2010 rules governing the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA requires employers to maintain the confidentiality of an individual’s genetic testing and to prohibit health care providers from providing information on individual family members’ genetic tests, genetic services, or the manifestation of disease or disorder on certification forms. The GINA rules offer employers a safe harbor from claims when the employer directs providers not to submit family medical history. (The EEOC safe-harbor language is available here.)
Notably, however, this EEOC safe harbor does not appear on the new FMLA forms in the manner prescribed by the EEOC. For example, the directive on the new FMLA form to certify leave for an employee’s own health condition, Form WH-380, specifically instructs health care providers to “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).” Because it is unclear whether this DOL directive meets the letter and spirit of the EEOC’s GINA rule, employers should consider adding a notice to physicians using the EEOC safe harbor language to certification forms.
Contact legal counsel for further guidance on complying with the FMLA, the Americans with Disabilities Act and GINA.