Those of you who have been losing sleep because the previously issued US Department of Labor FMLA forms had expired can rest easy. (You did know that they had expired, right?) The DOL has finally issued shiny new FMLA forms.
The new forms (WH-380-E, WH-380-F, WH-381, WH-382, WH-384, WH-385 and WH385V) can be located and downloaded from the DOL’s website here. For those of you who geek out on this kind of stuff, you should note May 31, 2018 on your calendars. That is the expiration date of the new forms. By then our federal government will have probably amended the FMLA again to further protect employee’s rights or intrusively over-burden employers, depending upon your point of view.
The primary difference between the new forms and the old is the inclusion of certain language regarding the Genetic Information Nondiscrimination Act (“GINA”). As you know, GINA is a federal law which generally prohibits discrimination against individuals based upon their genetic information, prohibits employers from obtaining genetic information regarding employees and applicants and instructs employers how to maintain such information if they do come into possession. (Employers frequently come into possession of genetic information when wading through the morass that are the FMLA and ADA processes.)
The EEOC regulations provide a “safe harbor” of sorts. If an employer comes into possession of genetic information in response to a lawful request for medical information (See above FMLA or ADA processes), the receipt of such information will be treated as “inadvertent” under the Act so long as the employer has affirmatively warned the employee and the health care provider not to provide genetic information in response to the requests.
In November of 2014 the EEOC even requested that the DOL include approved safe harbor language when it revised the FMLA forms. Apparently fearing that a flood of common sense would engulf the District of Columbia, the DOL ignored the EEOC’s request and instead inserted a brief instruction to health care providers that they should not provide information regarding genetic tests or services. It is not at all clear, however, that a court would find this language to satisfy the safe harbor provision. Thus, employers are left to their own devices when it comes to the safe harbor language.
Being a belt-and-suspenders kind of guy, I would recommend that employers attach their own safe harbor language to the new FMLA certification forms, keeping copies so that they can prove what was sent, to whom and when, until we have enough court opinions to give us further guidance. You may want to consider using the sample safe harbor language provided by the EEOC and copied below:
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.
Best of luck as you make use of the new forms and, as always, don’t hesitate to call if you have any specific questions.