DOL Issues New FMLA Forms Containing Genetic Information Warnings

The federal Department of Labor (DOL) has issued updated forms for Family Medical Leave Act (FMLA) certification.  These updated forms are to be completed by health care providers to certify that the employee, immediate family member, or military member/next of kin has a covered, serious health condition.  Access the complete set of FMLA forms here.   Please use these new forms effective immediately.  We recommend that covered employers access FMLA forms through the DOL portal when an employee requests leave to ensure that the most up-to-date forms are used in every case.  FMLA certification forms should only be used in connection with leave under that law.
The FMLA forms have been amended to include warnings under the Genetic Information Non-Discrimination Act (GINA) which prohibits employers with 15 or more employees from discriminating against employees and applicants on the basis of genetic information.  Genetic information includes, but is not limited to, information about genetic testing, genetic services, and family medical history.  Employers may not use genetic information in making employment decisions, may not request, require, or purchase genetic information about employees, and must adhere to confidentiality requirements under GINA.  Some family medical history information containing genetic information may be lawfully obtained if relevant to certification of a family member’s serious health condition under FMLA or as otherwise permitted by law. 
Employers who inform employees of their rights with respect to GINA, and instruct them not to provide genetic information except as permitted by law, may have some protection if the employee volunteers such information, so long as the employer does not discriminate against the employee because of the genetic information received.  The “safe harbor” notification language recommended under GINA goes beyond that which has been added to these updated FMLA forms.  For this reason, we recommend that employers provide a copy of their GINA policy statement to employees whenever employees are asked to provide medical certification, whether in connection with FMLA or otherwise.
As a reminder, under the FMLA, eligible employees may take up to 12 weeks of job-protected leave in a 12-month period due to their own serious health condition, to care for an immediate family member with a serious health condition, to bond with a newborn or newly placed adopted or foster child, or because of a qualified exigency due to the deployment of a military family member.  In addition, eligible employees may take up to 26 weeks of job-protected leave per 12-month period to care for a family member who is a covered service member or veteran with a serious health condition.  To be eligible for leave under FMLA, an employee must be employed at a work location where his or her employer has 50 or more employees within a 75-mile radius.  The employee also must have worked for the employer for at least 12 months and have worked no fewer than 1250 hours in the 12 months preceding the beginning of leave. 

Melissa Calhoon Jones, chair of the Labor and Employment Group, counsels companies on employment, labor, and immigration issues.  For more information about FMLA and GINA, please contact Ms. Jones via email or 410.752.9765.

This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.