Do You Need to Update Your FMLA Forms?
Many alerts and articles have been published about updating Family and Medical Leave Act (FMLA) forms due to the Department of Labor's (DOL) issuance of new forms in late May. If your FMLA leave forms already contain the Equal Employment Opportunity Commission's (EEOC) endorsed Genetic Information Nondiscrimination Act (GINA) language, however, you probably don’t need to engage in this exercise.
As most employers know, while the DOL’s FMLA forms are not mandatory, they are practical as they follow the regulations concerning what employers may ask with respect to FMLA leave, and they may be used as a defense with respect to compliance. The new forms are not that much different than the old ones, except that they just finally contain references to the GINA. The added language, however, is not ideal to preserve an employer’s safe harbor rights under GINA.
Under GINA, an employer requesting health-related information (e.g., to support a reasonable accommodation request under the Americans with Disabilities Act (ADA) or a request for sick leave), should warn the employee and health care provider from whom it requests the information not to provide genetic information. If this type of warning is provided, any resulting acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA.
The DOL’s new forms, which can be found here, only warn medical providers (not employees) not to disclose information protected by GINA, and they do so through the following, unclear and legalistic language:
Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).
The EEOC, which is charged with enforcing GINA, has previously promulgated much more sensible language to be given to employees and healthcare providers to preserve an employer’s GINA safe harbor rights. The language suggested by the EEOC is 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.
We recommend that employers continue to use the EEOC’s safe harbor language, rather than the newer, weaker one from the DOL. The new DOL forms can be viewed at: http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm
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