The U.S. Department of Labor (DOL) recently released new forms for employers to use in connection with leave taken by their employees under the Federal Family and Medical Leave Act (FMLA). The new forms reflect a new expiration date of February 28, 2015.
The following forms have been updated with the new expiration date:
- 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 Covered Servicemember -- for Military Family Leave
What is FMLA?
The FMLA entitles eligible employees to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons, or for any qualifying exigency arising out of the fact that a covered military member is on active duty, or has been notified of an impending call or order to active duty, in support of a contingency operation. The FMLA also allows eligible employees to take up to 26 workweeks of job-protected leave in a single 12-month period to care for a covered servicemember with a serious injury or illness.
The FMLA generally applies to employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Employees must meet certain eligibility requirements before they are entitled to take FMLA leave.
Guidance on GINA for Employers Requesting Medical Certification
Title II of the Federal Genetic Information Nondiscrimination Act (GINA) prohibits the use of genetic information in employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. FAQs issued by the U.S. Equal Employment Opportunity Commission (EEOC) provide guidance for employers to help them comply with GINA when they request medical certification from an employee taking FMLA leave. Specifically, FAQ #17 states that the final rule under GINA provides that when an employer makes a request for health-related information (e.g., to support an employee’s request for reasonable accommodation under the Americans with Disabilities Act or a request for sick leave), it should warn the employee and/or health care provider from whom it requested the information not to provide genetic information. The warning may be in writing or oral (if the employer typically does not make such requests in writing).
The final rule suggests language such as the following:
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.
According to the EEOC, if this type of warning is provided, any resulting acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA. In other words, use of this type of warning creates a “safe harbor” for employers who receive genetic information in response to a request for health-related information.