I have good news for you! The U.S. Department of Labor has finally released revised notices and forms for use with employee leaves under the Family and Medical Leave Act. More good news: the new docs have a new expiration date – May 31, 2018.
The revised notices/forms include the following:
- WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
- WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
- WH-381 Notice of Eligibility and Rights & Responsibilities
- WH-382 Designation Notice
- WH-384 Certification of Qualifying Exigency for Military Family Leave
- WH-385 Certification for Serious Injury or Illness of Current Servicemember – for Military Family Leave
- WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
(See the expiration date in the top right corner of the forms.) Prior to the new forms being issued, the old forms were scheduled to expire on May 31, 2015.
So, what’s changed in the new docs? Aside from the new expiration date, the latest version of the forms includes two references to the Genetic Information Nondiscrimination Act (GINA) (do not fall asleep on me here):
- The first is a reminder that employers must keep employee medical information confidential under the Americans with Disabilities Act (ADA) and GINA. The Equal Employment Opportunity Commission (EEOC), which enforces the employment provisions of the ADA and GINA, had requested this addition. Please make sure confidential medical information is removed from all employee personnel files and stored in a separate file. GINA is a federal law that prohibits employment discrimination based on an individual’s genetic information, restricts employers from acquiring such information from an employee or job applicant except in limited circumstances, and instructs employers on how to maintain such information when collected. Genetic information includes not only genetic tests of individuals and their family members, but also family medical histories.
- The second reference to GINA concerns disclosure of genetic information. Mindful that employers routinely collect medical information when an employee requests leave under the FMLA or a reasonable accommodation under the ADA, the EEOC has carved out certain exceptions to GINA’s general prohibition on acquiring genetic information. Specifically, the EEOC’s regulations provide that when an employer receives information in response to a lawful request for medical information (i.e., in response to a request for FMLA leave for an employee’s own serious health condition), the receipt of genetic information will be treated as “inadvertent,” as long as the employer affirmatively warns the individual and the health care provider not to provide genetic information. The “safe harbor” language reads as follows:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
In November 2014, the EEOC had requested that the DOL revise the FMLA medical certification forms to include this whole safe harbor disclaimer language. The DOL ignored the EEOC. Rather, the DOL simply added an instruction to health care providers not to provide information regarding genetic tests or genetic services. Uh-oh: It is now unclear whether the EEOC and courts will agree that the DOL’s disclaimer provides sufficient protection for employers. Thanks DOL.
My advice and your takeaway: The more conservative approach is to continue to attach the GINA safe harbor language above to the new FMLA medical certification forms until the DOL, EEOC and courts are all on the same page about the appropriate language to use.