The end of 2011 saw the expiration of the Department of Labor’s Family Medical Leave Act (FMLA) forms and the new models have finally arrived, the employers may continue to use the older forms until they receive the updated version. The new forms have been approved by the Office of Management and Budget through February 28, 2015; a significant change from the previous expiration date and the longest allowed by law.
To the chagrin of many employers, who expected the forms to make at least some mention of the new amendments regarding military family leave and the Genetic Information Nondiscrimination Act (GINA) safe-harbor language, no reference to either is made. It is up to employers to properly amend the forms in order to remain in compliance with current law.
Adding GINA safe-harbor language to the medical certification forms can help prevent medical providers from sharing confidential genetic information with an employer to avoid breaches of the new FMLA provisions. Language suggested by the Equal Opportunity Employment Commission to be used in instances of health-related data requests 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.”