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DOL Issues New FMLA Forms … Sort Of

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When employees take time off under the Family and Medical Leave Act (FMLA), that means paperwork for you.

If you use the Department of Labor's model FMLA certification and notice forms (as opposed to a homegrown variety), take note: Those six FMLA forms carried an expiration date of Dec. 31, 2011, in the top right corner.

For the past six weeks, the DOL has said employers could continue to use those expired forms. But just last week, the DOL published new versions that won't expire for three more years. Those forms carry a Feb. 28, 2015  expiration date. Employers can use these DOL forms directly in their organizations, or they can use the forms as models and create their own versions.

These "updated" versions, however, did not include any substantive changes, only the expiration date. That was somewhat of a surprise because the DOL did not use this opportunity to fix a pair of key deficiencies on their FMLA forms. Those deficiencies (which will likely be addressed in newly updated FMLA forms released later in 2012) include:

1) Any references to the additional FMLA rights provided under the 2010 amendments for military family leave.

2) Any reference to the “safe harbor” privacy language required under the Genetic Information Nondiscrimination Act of 2008 (GINA). The GINA law says that employers who request medical certifications from employees must instruct health care providers not to collect or provide any genetic information about the person.

For that reason, it’s wise to add language to your FMLA medical certification forms. The EEOC has suggested that employers add this language to any form that requests health-related information from their employees:

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.

If you provide this type of warning and follow the other GINA rules,, the EEOC says, "any genetic information the entity acquires will be considered inadvertent." Thus, this wording attached to your FMLA forms helps create a “safe harbor” for employers.


DOL MODEL FMLA FORMS, updated with 2015 expiration date:

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