On May 27, the U.S. Department of Labor (DOL) published updated model Family and Medical Leave Act (FMLA) notices and certification forms. Copies of the updated forms, which should be used through May 31, 2018, are available on the DOL’s website.
The most notable change to the forms is their reference to the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA is a federal law enforced by the Equal Employment Opportunity Commission (EEOC) that makes it illegal for employers to discriminate against employees or applicants based on their genetic information. GINA also restricts employers from requesting employees’ and their family members’ genetic information, except in extremely limited circumstances. An employer does not violate GINA, however, if it receives genetic information from a health care provider (HCP) in response an FMLA-compliant request for information, so long as the employer instructed the HCP not to furnish any genetic information in response to the request.
Consistent with the above, the DOL’s revised instructions in the “Certification of Health Care Provider for Employee's Serious Health Condition” state:
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).
The DOL has added similar disclaimer language to other certification forms. Surprisingly, the DOL’s disclaimer does not track the GINA warning language that the EEOC had previously approved (see question 17 in link), creating uncertainty between the two federal agencies. The EEOC's stance on the DOL’s GINA language is currently not clear and may need to be resolved in court or with future EEOC guidance.
Irrespective of future resolution of this uncertainty, however, one thing is clear: employers using outdated FMLA forms need to update their FMLA document library as soon as possible. We also recommend that employers consult with counsel about the appropriate GINA disclaimer language to include in their new FMLA forms.