The Department of Labor (“DOL”) recently revised and updated the template forms that the agency issues for use in Family and Medical Leave Act (“FMLA”) notice and certification. Some of these new forms have received substantial revision, and all have been approved through the end of May 2018. The most notable change, however, may be that certain new forms related to medical certification (WH-380-E, WH-380-F, WH-385 and Wh-385-V) address Genetic Information Nondiscrimination Act (“GINA”) “safe harbor” language.
GINA is an antidiscrimination law designed to prevent individuals from facing discrimination due to the release of genetic information. It prohibits employers from using genetic information in making employment decisions, and it prevents certain disclosures and requests on the part of employers and other organizations where genetic information is concerned. The law does provide a safe harbor, however. Employers are prohibited from requesting genetic information, but it is possible that they may receive it anyway in response to requests for medical information. Employers can keep from running afoul of GINA, however, by warning the employee and healthcare providers giving care to employees not to provide any genetic information to the employer as a result of an employer’s information request. If this warning is given, any genetic information obtained is deemed inadvertent and not a GINA violation.
The intersection of FMLA and GINA is particularly troublesome for employers, as the FMLA allows employers to require documentation from employees requesting FMLA leave. This documentation can inadvertently provide problematic genetic information to employers. The new FMLA forms include language that briefly warn employees and healthcare entities not to provide information about genetic tests, genetic services and in some cases, manifestation of disease or disorder in the family members of the employee. The language is limited to one sentence, falling far shorter than the meaty paragraph of sample language that accompanies the safe harbor in the actual GINA regulations. This reduction in verbiage is likely to provide employers more of a respite where FMLA forms are concerned, avoiding the extensive language in the regulation.