Recently, the U.S. Department of Labor published updated Health Care Provider Certification Forms for employers to provide employees requesting leave under the Family Medical Leave Act (“FMLA”) for their own serious health condition, a family member’s serious health condition, and to care for a covered service member or veteran with a serious injury or illness. Employers should begin using the updated Health Care Provider Certification Forms immediately.
Copies of the updated forms are available on the Department of Labor’s website, but can also be accessed here.
The updated FMLA forms include reference to the confidentiality requirements of the Genetic Information Non-Discrimination Act of 2008 (“GINA”). Under GINA, employers are prohibited from discriminating based upon genetic information when making hiring, termination or referral decisions, or when making decisions regarding compensation, terms, conditions, or privileges of employment. GINA also prohibits employers from requesting, requiring, or purchasing genetic information of an employee or an employee’s family member except in certain situations. For example, an employer may request genetic information to satisfy certification requirements under the FMLA. Employers should be advised that under GINA, persons may not be retaliated against for opposing an act or practice made unlawful by GINA.
Although the Equal Employment Opportunity Commission enforces GINA, the Department of Labor has included reference to GINA in the revised Health Care Provider Certification Forms, because genetic information under GINA includes information about the employee or family member, family medical history in general, and request for or receipt of genetic services by employees or their family members. Employers are advised to keep FMLA forms in separate files/records from the employee’s usual personnel file.